Adjustment of Conversion Rate Sample Clauses: 2k Samples

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 3 contracts

Sources: Indenture (Diversified Contractors Inc), Indenture (General Cable Corp /De/), Indenture (General Cable Corp /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of shareholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ immediately preceding the ~~record~~ date ~~for~~ such distribution is first publicly announced by the ~~determination of stockholders entitled to receive such rights or warrants~~Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the Current Market Price ~~per share of Common Stock on~~ immediately preceding the date such ~~record date. Such~~ distribution is first publicly announced by the Company, such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price ~~per share of Common Stock~~ immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~14.05(a) (any of the foregoing hereinafter in this Section 14.05(d) called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that, if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Time plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ Fair Market Value of the ~~Spinoff Securities multiplied by (ii~~securities distributed in respect of each share of Common Stock for which this Section 14.05(d) applies, which shall equal the number of ~~Spinoff~~ Securities distributed in respect of ~~one~~ each share of Common Stock multiplied by the average of the closing sale prices of those Securities distributed (where such closing sale prices are available) for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 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 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.05(d) and Sections 14.05(a) and 14.05(b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and 14.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of shareholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 14.05(a) and 14.05(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 14.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the record date for~~ such ~~Triggering Distribution (a “Determination Date”)~~ Record Date by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination~~ such Record Date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ Record Date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a Fair Market Value (~~determined~~ as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such idete

Appears in 3 contracts

Sources: Indenture (American Dairy Inc), Indenture (Origin Agritech LTD), Indenture (American Dairy Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case the outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case the ~~stockholders to subscribe for or purchase~~ outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) any mergers or consolidations to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 12.4) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of Directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid. If the amount~~ determination of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right stockholders entitled to receive ~~upon conversion~~such distribution. If, ~~the amount of cash so distributed that~~ after any such ~~Holder would have received had~~ date fixed for determination, any such ~~Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date that the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (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 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 (5) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer ~~made~~ by the Company or any of its Subsidiaries for all or any portion of the Common Stock ~~shall expire, then, if~~ concluded within the 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 ~~offer shall require~~ amount") exceeds 10% of the ~~payment to stockholders~~ product of ~~consideration~~ the current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 12.4) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the ~~aggregate consideration payable~~ Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds ___% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 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,~~ 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 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 (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding~~ 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 12.4). (8) For the purpose of any ~~shares held in~~ computation under paragraphs (2), (4), (5) or (6) of this Section 12.4, the ~~treasury of the Company) at the Expiration Time multiplied by the Closing 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 daily Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 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 the regular way in the applicable securities market or on the ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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 in its sole discretion make such iincreases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, 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 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) Notwithstanding the foregoing provisions of this Section, no adjustment of the Conversion Rate shall be 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 or any successor rule thereto. (12) 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 le

Appears in 2 contracts

Sources: Indenture (Sonus Networks Inc), Indenture (Sonus Networks Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the ~~Company~~ Company, without duplication, as follows: (1) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 as if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights or warrants (other than rights or warrants referred to in Section 4.07(a)(4)) to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) 9) of this Section ~~4.06(a~~4.07(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so offered for subscription or purchase (or into or for which the convertible or exchangeable securities so offered are ~~convertible~~convertible or exchangeable) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible or exchangeable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion or exchange of such convertible or exchangeable securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible or exchangeable securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into or exchangeable for Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~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 (or securities convertible into or exchangeable for Common Stock) actually delivered. If 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 the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities)~~ Stock of the Company (other than any dividends or distributions to which Section 4.07(a)(1) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (x) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~4.07(a)(3), (y) ~~dividends and distributions~~ any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination, ~~liquidation~~sale, ~~dissolution~~conveyance or lease to which Section 4.11 hereof applies, ~~winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10~~ and (z) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant to Section 4.06(a)(6))~~ (the securities described in foregoing clauses (x), (y) and (z) hereinafter in this Section 4.07(a)(4) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ third succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 4.07(a)(4)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to ~~such~~ the close of business on the record date (as defined in Section 4.07(a)(9)(C)) with respect to such distribution by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ (determined as provided in Section 4.07(a)(9)) on such ~~record date~~ date, and the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price ~~per share~~ on such ~~record~~ date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors (except as described below), whose determination shall be conclusive and set forth in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at on the ~~close of business on such~~ record date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the record ~~date for~~ date, or in the ~~determination~~ case of ~~stockholders entitled~~ a Spin-off (as described below), immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash or other assets, including securities, such ~~distribution~~Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such record date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect as if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~4.07(a)(4) by reference to the actual or when issued trading market for any ~~securities~~securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 4.07(a)(9) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the ~~Common Stock~~Holder. ~~Notwithstanding~~ In the ~~foregoing, if the securities distributed by~~ event the Company ~~to all holders~~ distributes shares of ~~its Common Stock consist~~ capital stock of ~~Capital Stock of, or similar equity interests in,~~ a Subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, the Conversion Rate ~~shall~~ will be adjusted, ~~unless the Company makes an equivalent distribution to the Holders of the Securities~~if at all, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date ~~for~~ (as defined in Section 4.07(a)(9)) with respect to such ~~Triggering Distribution (a “Determination Date”)~~ distribution by a fraction, (i) the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator~~ of which shall be the Current Market Price ~~per share~~ (determined as described below) on such date plus the fair market value on such date of the ~~Common Stock on~~ portion of the ~~Determination Date less the amount~~ shares of capital stock of such ~~Triggering Distribution~~ Subsidiary or other business unit of the Company so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the record date), and (ii) the denominator of which shall be such Current Market Price on such date (determined as described below). 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 10 consecutive Trading Days commencing on and including the fifth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”) and the Current Market Price shall be calculated over the same Measurement Period; provided, however, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, the 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 for the Common Stock on the same Trading Day. 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 4.07(a)(4) (and no adjustment to the Conversion Rate under this Section 4.07(a)(4) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 4.07(a)(4): (A) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (B) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 4.07(a)(4) and Sections 4.07(a)(1), 4.07(a)(2) and 4.07(a)(3), any dividend or distribution to which this Section 4.07(a)(4) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 4.07(a)(2) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 4.07(a)(3) applies (or any combination thereof), shall be deemed instead to be: (A) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 4.07(a)(1), 4.07(a)2 and 4.07(a)(3) apply, respectively (and any Conversion Rate increase required by this Section 4.07(a)(4) with respect to such dividend or distribution shall then be made); immediately followed by (B) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 4.07(a)(1), 4.07(a)(2) and 4.07(a)(3) with respect to such dividend or distribution shall then be made); except: (i) the record date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “record date fixed for such determination” and “record date” within the meaning of Section 4.07(a)(1), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 4.07(a)(2), and (z) “the record date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “record date,” “the record date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such date fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 4.07(a)(3); and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the ~~Determination Date),~~ record date fixed for such ~~increase to become effective immediately prior to~~ determination” within the ~~opening~~ meaning of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”Section 4.07(a)(1) and ~~(B) the product of~~ any reduction or increase in 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which resulting from such subdivision or combination shall be ~~the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held~~ disregarded in ~~the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date,~~ connection with such idividend or dis

Appears in 2 contracts

Sources: Indenture (Vertex Pharmaceuticals Inc / Ma), Indenture (Vertex Pharmaceuticals Inc / Ma)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion ~~Rate~~ Rate, as in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other ~~distribution~~ distribution, shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate ~~in effect immediately prior to such record 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment~~ determination, and (ii) the denominator of which shall be ~~made successively whenever any~~ the sum of such number of shares and the total number of shares constituting such dividend or ~~distribution is made and shall~~ other distribution, such increase to become effective immediately after the opening of business on the Business Day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Companydetermination. The Company will not pay any dividend or make any distribution on shares of Common Stock held in ~~the~~ treasury of by the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If In case the Company shall ~~subdivide its outstanding Common Stock into~~ (other than pursuant to a ~~greater number of shares~~dividend reinvestment plan or share purchase plan) issue rights, options or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights warrants to all holders of its ~~outstanding~~ Common Stock entitling ~~them (~~them, for a period expiring within 45 60 days after the date of issuance of such ~~distribution)~~ rights, options or warrants, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price per share of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date ~~for the determination~~ of ~~stockholders entitled to receive~~ issuance of such ~~rights~~ rights, options or warrants, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by ~~multiplying the~~ dividing such Conversion Rate ~~in effect immediately prior to such record date~~ 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 such ~~record date~~ determination plus ~~the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be~~ the number of shares of Common Stock ~~outstanding at the close of business on such record date plus the number of shares which~~ that the aggregate 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 (or ii) the ~~aggregate conversion price~~ denominator of ~~the convertible securities so offered for subscription or purchase,~~ which shall be ~~determined by multiplying~~ the number of shares of Common Stock ~~issuable upon conversion~~ outstanding at the close of business on the date fixed for such ~~convertible securities by~~ determination plus the ~~Conversion Price per share~~ number of shares of Common Stock ~~pursuant to the terms of such convertible securities) would~~ so offered for subscription or purchase at ~~the~~ such below Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such ~~rights~~ rights, options or warrants are ~~issued,~~ issued and shall become effective immediately after the opening of business on the Business Day following the date fixed for such ~~record date~~determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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~~ rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights~~ rights, options 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 ~~the record~~ such date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, options or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such ~~rights~~ rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding shares of Common Stock shall be subdivided or split 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 or split becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall 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, split or combination becomes effective. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~capital stock, ~~other than Common Stock~~securities, ~~or evidences of Indebtedness~~ cash or other ~~assets~~ property (~~including securities) of the Company (~~but excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~rights, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution ~~paid exclusively~~ referred to in ~~cash for which an adjustment was made pursuant~~ Section 15.05(a) and any options or warrants referred to in Section ~~4.06(a)(6~~15.05(b)~~) (the “Distributed Securities”~~), ~~then in each such case (unless~~ the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) Conversion Rate shall be adjusted by dividing the Conversion Rate in effect immediately prior to the ~~record~~ close of business on the date fixed for the determination of stockholders entitled to receive such ~~dividend or~~ distribution ~~shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date~~ by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price per share of the Common Stock on the date fixed for such ~~record date and~~ determination, and (ii) the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price per share on of the Common Stock plus (i) with respect to distributions paid exclusively in cash, the amount per share of such ~~record date less~~ distribution, (ii) with respect to all other distributions, the then fair market value per share (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors, whose determination shall be conclusive and described in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ evidences of indebtedness, shares of capital stock, securities, or other property so ~~distributed applicable~~ distributed, or (iii) with respect to ~~one~~ distributions of which cash is a portion (but not all) of such distribution, the amount per share of ~~Common Stock~~ the distribution payable in cash plus the then fair market value per share (as determined on by the ~~basis~~ Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the ~~number~~ remaining portion of ~~shares of Common Stock outstanding at~~ such distribution that is payable other than in cash. such adjustment to become effective immediately prior to the ~~close~~ opening of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the ~~record~~ Business Day following the date fixed for the determination of stockholders entitled to receive such distribution~~. In~~ ; provided, however, that in the event that the Company makes a distribution to all holders of its Common Stock consisting of capital stock of, or similar equity interest in, a subsidiary or other business unit of the Company, the Conversion Rate shall be adjusted by 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 Spin-off Market Price per share of the Common Stock on the date fixed for such determination and the denominator shall be the Spin-off Market Price per share of the Common Stock on the date fixed for such determination plus the Spin-off Market Price per share or similar equity interest of the subsidiary or other business unit of the Company on such date, such adjustment to become effective 10 Trading Days after the effective date of such distribution of capital stock of, or similar equity interest in, a subsidiary or other business unit of the Company. In any case in which this Section 15.05(d) is applicable, Section 15.05(a) and (b) shall not be applicable. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. If~~ . (e) In case a tender or exchange offer made by the ~~then Fair Market Value (as so determined)~~ Company or any subsidiary of the Company for all or any portion of the ~~Distributed Securities so distributed applicable~~ Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to ~~one~~ stockholders of consideration per share of Common Stock ~~is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of~~ having a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If fair market value (as determined by the Board of ~~Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) by reference to the actual or when issued trading market for any securities~~Directors, ~~it must~~ whose determination shall be conclusive and described in ~~doing so consider the prices in such market over the same period used in computing the Current Market Price~~ a resolution of the ~~Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders~~ Board of ~~its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit~~ Directors) that as of the ~~Company~~ last time (the “~~Spinoff Securities~~Expiration Time”), ) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Last Reported Sale Price of ~~one~~ a share of Common Stock ~~over~~ on the ~~10 consecutive~~ Trading Day ~~period commencing on and including~~ next succeeding the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary)Expiration Time, the Conversion Rate shall be increased so that the same shall equal the rate determined by ~~multiplying such~~ dividing the Conversion Rate in effect immediately prior to the ~~close of business on the record date for such Triggering Distribution (a “Determination Date”)~~ Expiration Time by a fraction, : (i) the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the ~~close of business on~~ Expiration Time multiplied by the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Last Reported Sale Price ~~per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder~~ of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), and (ii) the Conversion Rate shall be increased 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 Expiration Date by a fraction denominator of which ~~the numerator~~ shall be the sum of (Ax) the ~~Fair Market Value~~ fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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~~Shares) at the Expiration Time and the ~~Closing~~ Last Reported Sale Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the Expiration ~~Date~~ Time, such adjustment to become effective immediately prior to the opening of business on the day following the expiration time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (f) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon an event to which Section 15.06 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the ~~denominator~~ effective date of ~~which~~ such reclassification shall be deemed to be “the ~~product~~ date fixed for the determination of stockholders entitled to receive such distribution” and the “date fixed for such determination” within the meaning of Section 15.05(d)), and (b) a subdivision, split 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 (~~including Purchased Shares but excluding~~ and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision or split becomes effective” or “the day upon which such combination becomes effective,” as the case may be, and “the day upon which such subdivision, split or combination becomes effective” within the meaning of Section 15.05(c)). (g) Notwithstanding the foregoing provisions of Section 15.05, no adjustment shall be made thereunder, nor shall an adjustment be made to the ability of a holder of a Note to convert, for any ~~shares held~~ distribution described therein if the holder will otherwise participate in the ~~treasury~~ distribution without conversion of such holder’s Notes. (h) The Company may make such increases in the Conversion Rate, in addition to those required by clauses (a) through (g) of this Section 15.05 as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company in its sole discretion may increase from time to time the Conversion Rate by any amount for any period of time if the period is at least 20 days, the increase is irrevocable during the 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 the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to holders of record of the Notes a notice of the increase at least 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. (i) at No adjustment to the ~~Expiration Time multiplied~~ Conversion Rate need be made: (i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan; (ii) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the ~~Closing Price per share~~ Company or any of its Subsidiaries; (iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in (ii) above and outstanding as of the date the Notes were first issued; (iv) for a change in the par value of the Common Stock; (v) for accrued and unpaid interest, including Contingent Interest, if any; or (vi) upon a reclassification of Common Stock or any consolidation, merger, binding share exchange or transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, in each case pursuant to which the Common Stock is converted into cash, securities or other property. To the extent the Notes become convertible into cash, assets or property (other than capital stock of the Company or securities to which Section 15.06 applies), no adjustment shall be made thereafter as to the cash, assets or property. Interest shall not accrue on such cash, assets or property. (j) No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in such rate; provided that any adjustments that by reason of this Section 15.05(j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 15 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the holder of each Note at his last address appearing on the ~~Trading Day next succeeding the Expiration Date~~Note Register provided for in Section 2.05 of this Indenture, within 20 days after execution thereof. Failure to deliver such inotic

Appears in 2 contracts

Sources: Indenture (Alliant Techsystems Inc), Indenture (Alliant Techsystems Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company ~~shall~~ shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders ~~of outstanding Common Stock in shares~~ of Common Stock, the Conversion Rate ~~in effect immediately prior to~~ will be adjusted based on the ~~record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying~~ following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately ~~prior to~~ preceding the Ex-Dividend Date for such ~~record date by a fraction of which~~ dividend or distribution; CR1 = the ~~numerator shall be~~ Conversion Rate in effect on the ~~sum of~~ Ex-Dividend Date for such dividend or distribution; OS0 = the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on ~~such record date plus~~ the ~~total number of shares of Common Stock constituting~~ Trading Day immediately preceding the Ex-Dividend Date for such dividend or ~~other distribution~~ distribution; and ~~of which the denominator shall be~~ OS1 = the number of shares of Common Stock that would be outstanding ~~at the close of business on such record date. Such adjustment shall be made successively whenever any~~ immediately after, and solely as a result of, such dividend or ~~distribution is~~ distribution. Any adjustment made ~~and~~ pursuant to this Section 6.04(a) shall become effective immediately ~~after~~ prior to the Open of Business on the Ex-Dividend Date for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or ~~make any distribution on Common Stock held in the treasury of the Company~~distribution. If any dividend or distribution that is the subject of ~~the type described in~~ this ~~clause~~ Section 6.04(a) is declared but not so paid or made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ readjusted, effective as of the date the Company publicly announces its decision not to make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) For purposes of this Section ~~4.06(a~~6.04(a)~~) on the record date for the determination of stockholders entitled to receive such rights or warrants~~, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the Ex-Dividend Date for such ~~record date plus the number of additional~~ dividend or distribution shall not include shares of Common Stock ~~offered~~ held in treasury, if any. The Company will not pay any dividend or make any distribution on Common Stock held in treasury, if any. (~~or into which the convertible securities so offered are convertible~~b) ~~and~~ In case outstanding shares of ~~which the denominator~~ Common Stock shall be subdivided into a greater number of shares of Common Stock or combined into a smaller number of shares of Common Stock, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the effective date of such subdivision or combination; CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the effective date of such ~~record date plus~~ subdivision or combination; and OS1 = the number of shares ~~which~~ of Common Stock that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately prior to the Open of Business on the effective date of such subdivision or combination. (c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder rights plan) or warrants to all or substantially all holders of Common Stock entitling them to purchase, for a period expiring within 45 calendar days of the date of announcement, Common Stock at an aggregate ~~offering~~ price per share less than the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date that the issuance of the rights or warrants was first publicly announced, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; X = the total number of shares of Common Stock ~~so offered for subscription~~ issuable pursuant to such rights or ~~purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying~~ warrants; and Y = the number of shares of Common Stock ~~issuable upon conversion~~ equal to the quotient of (x) the aggregate price payable to exercise such ~~convertible securities~~ rights or warrants divided by (y) the ~~Conversion Price per share~~ average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. Any adjustment made pursuant to ~~the terms of such convertible securities~~this Section 6.04(c) ~~would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and~~ shall become effective immediately ~~after~~ prior to the Open of Business on the Ex-Dividend Date for such ~~record date~~issuance. In the event that such rights or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock ~~(or securities convertible into Common Stock)~~ are otherwise not delivered ~~after~~ pursuant to such rights or warrants upon the ~~expiration~~ exercise of such ~~rights~~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 the delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In ~~determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in~~ determining the aggregate ~~offering~~ price ~~of the total number of shares of Common Stock so offered~~payable to exercise such rights or warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and ~~any amount payable on exercise or conversion thereof,~~ the value of such ~~consideration,~~ consideration (if other than cash, to be determined by the Company’s Board of Directors~~. (4) If the Company shall make a dividend or other distribution to all holders~~ ). For purposes of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to this Section ~~4.06(a)(3~~6.04(c), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the Ex-Dividend Date for such ~~record date~~issuance shall not include shares of Common Stock held in treasury, if any. The Company will not issue any rights or warrants in respect of shares of Common Stock held in treasury, if any. (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock, shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, but excluding: (i) any dividends or distributions referred to in Section 6.04(a) above; (ii) shares delivered in connection with subdivisions of Common Stock referred to in Section 6.04(b) above; (iii) any rights or warrants referred to in Section 6.04(c) above; (iv) any rights or warrants referred to in the last paragraph of this Section 6.04(d) below (to the extent and as specified therein)~~. Such adjustment shall~~ ; (v) any dividends or distributions referred to in Section 6.04(e) below; and (vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d) applies, then for these non-excluded transactions and events, the Conversion Rate will be ~~made successively whenever any~~ adjusted based on the following formula: CR1 = CR0 x SP0 SP0 - FMV where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors) on the Ex-Dividend Date for such distribution is of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x FMV0 + MP0 MP0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interests distributed in the Public Spin-Off to holders of Common Stock applicable to one share of Common Stock during the 10 consecutive Trading Day period commencing on and including the effective date of the Public Spin-Off (the “Public Spin-Off Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock during the Public Spin-Off Valuation Period. Any adjustment made ~~and~~ pursuant to this Section 6.04(d) shall become effective immediately ~~after~~ prior to the ~~record date~~ Open of Business on the Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such distribution. ~~In the event that such~~ If any dividend or distribution of the type described in this Section 6.04(d) is declared but not so paid or made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If an adjustment to the ~~then Fair Market Value (as so determined~~Conversion Rate is required pursuant to this Section 6.04(d) during any settlement period in respect of Securities that have been tendered for conversion, delivery of the ~~portion of~~ related conversion consideration will be delayed to the ~~Distributed Securities so distributed applicable~~ extent necessary in order to ~~one share of Common Stock is equal to or greater than~~ complete the ~~Current Market Price per share of the Common Stock on such record date,~~ calculations provided for in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record datethis Section 6.04(d). ~~If the Board of Directors determines the Fair Market Value of any distribution for~~ For purposes of this Section ~~4.06(a)(4) by reference to the actual~~ 6.04(d), rights 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. Notwithstanding the foregoing, if the securities warrants distributed by the Company to all or substantially all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock of(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 shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion Rate under this Section 6.04(d) 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 6.04(d), except as set forth in Section 6.14. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or 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 Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Section 6.14. In addition, except as set forth in Section 6.14, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 6.04(d) was made (including any adjustment contemplated by Section 6.14), (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution~~ per share redemption or repurchase price received by a ~~fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share~~ holder or holders of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such ~~distribution. (5) With respect to any~~ rights or warrants (~~the “Rights”) that may be issued~~ assuming such holder had retained such rights or ~~distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”~~warrants), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed made to all holders of Common Stock ~~Distributed Securities~~ as ~~provided~~ of the date of such redemption or repurchase, and (2) in the ~~first paragraph~~ case of ~~clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of~~ such rights or ~~warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph~~ warrant that shall ~~not constitute a distribution of rights~~ have expired or ~~warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a)~~been terminated without exercise by any holders thereof, ~~there will not be any adjustment to~~ the Conversion Rate shall be readjusted as ~~the result of the issuance of any Rights, the distribution of separate certificates representing~~ if such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights~~rights and warrants had not been issued. (6e) If In case the Company ~~shall, by~~ shall pay a dividend or ~~otherwise, at any time~~ otherwise distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of ~~its~~ Common Stock a ~~payment~~ dividend or other distribution consisting exclusively of cash (excluding any dividend or distribution made in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate ~~shall~~ will be ~~increased so that~~ adjusted based on the ~~same shall equal~~ following formula: CR1 = CR0 x SP0 SP0 - C where CR0 = the ~~rate determined by multiplying such~~ Conversion Rate in effect ~~immediately prior to~~ at the ~~close~~ Close of ~~business~~ Business on the ~~record~~ Trading Day immediately preceding the Ex-Dividend date for such ~~Triggering Distribution (a “Determination Date”) by a fraction,~~ dividend or distribution; CR1 = the ~~numerator~~ Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of ~~which shall be such Current Market Price per share~~ the Last Reported Sale Prices of the Common Stock on during the ~~Determination~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and ~~the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less~~ C = the amount ~~of such Triggering Distribution applicable to one~~ in cash per share of Common Stock ~~(determined on~~ the ~~basis of the number of shares~~ Company pays as a dividend or otherwise distributes to holders of Common ~~Stock outstanding at the close of business on the Determination Date), such increase~~ Stock. Any adjustment made pursuant to this Section 6.04(e) shall become effective immediately prior to the ~~opening~~ Open of ~~business~~ Business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. In the event that Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 6.04(e) is declared but not so paid or made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case of purchases of Common Stock pursuant to a tender offer or exchange offer made by the Company or any Subsidiary of ~~its Subsidiaries~~ the Company for all or any portion of Common ~~Stock shall expire~~Stock, ~~then, if~~ to the ~~tender offer shall require~~ extent that the Fair Market Value of cash and any other consideration included in the payment ~~to stockholders of consideration~~ per share of Common Stock ~~having a Fair Market Value (determined as provided below) that~~ exceeds the ~~Closing~~ Last Reported Sale Price ~~per share~~ of the Common Stock on the Trading Day ~~next succeeding~~ immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”~~) tenders could have been made pursuant to such tender offer (~~), as it may be amended~~) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~, the Conversion Rate ~~shall~~ will be ~~increased so that~~ adjusted based on the ~~same shall equal the rate determined by multiplying~~ following formula: CR1 = CR0 x AC + (SP1 x OS1) SP1 x OS0 where CR0 = the Conversion Rate in effect ~~immediately prior to~~ at the ~~close~~ Close of ~~business~~ Business on the Expiration ~~Date by a fraction of which~~ Date; CR1 = the ~~numerator shall be~~ Conversion Rate in effect on the ~~sum of (A)~~ Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Company’s Board of Directors), on the Expiration Date, of the aggregate ~~consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer)~~ value of all ~~shares~~ cash and any other consideration paid or payable for Common Stock validly tendered or exchanged and not withdrawn as of the Expiration ~~Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of~~ Date; OS0 = the number of shares of Common Stock outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender offer or exchange offer (~~less any Purchased Shares and excluding any shares held in~~ the ~~treasury of the Company~~“Expiration Time”) ~~at the Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of~~ (prior to giving effect to such tender or exchange offer); OS1 = the number of shares of Common Stock outstanding ~~(including Purchased Shares but excluding any shares held in the treasury of the Company) at~~ immediately after the Expiration Time ~~multiplied by~~ (after giving effect solely to such tender or exchange offer); and SP1 = the ~~Closing Price per share~~ average of the Last Reported Sale Prices of the Common Stock on during the 10 consecutive Trading Day period commencing on, and including, the Trading Day ~~next succeeding~~ immediately after the Expiration Date~~, such i~~. Any adjustment pursuant to this Section 6.04(f)

Appears in 2 contracts

Sources: Indenture (Evergreen Solar Inc), Indenture (Evergreen Solar Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of shareholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ immediately preceding the ~~record~~ date ~~for~~ such distribution is first publicly announced by the ~~determination of stockholders entitled to receive such rights or warrants~~Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the Current Market Price ~~per share of Common Stock on~~ immediately preceding the date such ~~record date. Such~~ distribution is first publicly announced by the Company, such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price ~~per share of Common Stock~~ immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~14.05(a) (any of the foregoing hereinafter in this Section 14.05(d) called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that, if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Time plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ Fair Market Value of the ~~Spinoff Securities multiplied by (ii~~securities distributed in respect of each share of Common Stock for which this Section 14.05(d) applies, which shall equal the number of ~~Spinoff~~ Securities distributed in respect of ~~one~~ each share of Common Stock multiplied by the average of the closing sale prices of those Securities distributed (where such closing sale prices are available) for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time; and (iii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 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 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.05(d) and Sections 14.05(a) and 14.05(b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and 14.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of shareholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 14.05(a) and 14.05(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 14.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the record date for~~ such ~~Triggering Distribution (a “Determination Date”)~~ Record Date by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination~~ such Record Date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ Record Date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a Fair Market Value (~~determined~~ as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such idet

Appears in 2 contracts

Sources: Indenture (China Security & Surveillance Technology, Inc.), Notes Purchase Agreement (China Security & Surveillance Technology, Inc.)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall (i) pay a dividend or on its Common Shares in Common Shares, (ii) make a distribution ~~to all holders of outstanding~~ on its Common ~~Stock~~ Shares in ~~shares of~~ Common ~~Stock~~Shares, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2iii) ~~If the Company shall~~ subdivide its outstanding Common ~~Stock~~ Shares into a greater number of shares, or (iv) combine its outstanding Common ~~Stock~~ Shares into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such ~~record date~~ event by a fraction of which the numerator shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at immediately after such event and the ~~close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding ~~at the close of business on~~ immediately prior to such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock event. An adjustment made pursuant to this subsection (a) shall become effective immediately after the ~~terms~~ Record Date in the case of ~~such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued,~~ a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination. (b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Shares entitling them (for a period commencing no earlier than the Record Date described below and expiring not more than 60 days after such ~~record date. To the extent that shares of~~ Record Date) to subscribe for or purchase Common ~~Stock~~ Shares (or securities convertible into Common ~~Stock~~Shares) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price ~~per share of Common Stock and in determining~~ on the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock Trading Day immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution))~~ issuance, the Conversion Rate in effect ~~immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such ~~record~~ Record Date by a fraction of which the numerator shall be the number of Common Shares outstanding at the close of business on the date immediately preceding the Record Date plus the number of additional Common Shares offered (or into which the Convertible Notes so offered are convertible), and the denominator of which shall be the number of Common Shares outstanding at the close of business on the date immediately preceding the Record Date plus the number of shares which the aggregate offering price of the total number of Common Shares so offered (or the aggregate conversion price of the Convertible Notes so offered, which shall be determined by multiplying the number of Common Shares issuable upon conversion of such Convertible Notes by the Conversion Price Common Share pursuant to the terms of such Convertible Notes) would purchase at the Current Market Price on the Trading Day immediately preceding the Record Date for such issuance. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective on the day following the date of announcement of such issuance. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional Common Shares actually issued (or the number of Common Shares issuable upon conversion of Convertible Notes actually issued). (c) In case the Company shall distribute to all or substantially all holders of its Common Shares, any shares of Capital Stock of the Company (other than Common Shares), Extraordinary Cash Dividends or any evidences of Indebtedness or other non-cash assets (including securities of any person other than the Company but excluding dividends or distributions referred to in subsection (a) of this Section 4.2), or shall distribute to all or substantially all holders of its Common Shares rights or warrants to subscribe for or purchase any of its Convertible Notes (excluding those rights and warrants referred to in subsection (b) of this Section 4.2, then in each 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 such distribution by a fraction of which the numerator shall be the Current Market Price ~~per share of~~ on the ~~Common Stock on~~ Record Date for such ~~record date~~ distribution and ~~of which~~ the denominator shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the fair market value on such Record Date (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ Capital Stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one ~~share of~~ Common ~~Stock~~ Share (determined on the basis of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at on the ~~close of business on such record date~~Record Date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the ~~record date~~ Record Date for ~~the determination of stockholders entitled to receive~~ such distribution. 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the ~~Distributed Securities~~ Capital Stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one ~~share of~~ Common ~~Stock~~ Share is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on such ~~record date~~Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a ~~Security~~ Convertible Note shall have the right to receive upon conversion the amount of ~~Distributed Securities~~ Capital Stock, evidences of Indebtedness or other non-cash assets so distributed ~~that~~ or of such ~~Holder~~ rights or warrants such holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Convertible Note on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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~~ which would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If the Board of Trustees determines the fair market value of any distribution for purposes of this Section 4.2 by reference to the actual or when issued trading market for any Convertible Notes, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price. Rights or warrants distributed by the Company to all holders of Common 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 Common Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 4.2 (and no adjustment to the Conversion Rate under this Section 4.2 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 4.2. 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 non-cash 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 4.2 was made, (i) in the case of any such rights or warrants, all of which shall 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 Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Shares as of the date of such redemption or repurchase, and (ii) in the case of such rights or warrants which 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. (7d) If In case the Company shall distribute a Regular Cash Dividend (a “Triggering Distribution”) to all or substantially all holders of its Common Shares in excess of $0.42 per share in any quarterly period, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying such Conversion Rate in effect on the Business Day immediately preceding the Record Date for such Triggering Distribution by a fraction of which the numerator shall be the Current Market Price on the Record Date for such Triggering Distribution, and the denominator shall be the Current Market Price on the Record Date for such Triggering Distribution less the aggregate amount by which the cash so distributed applicable to one Common Share (determined on the basis of the number of Common Shares outstanding on the Record Date for such Triggering Distribution) exceeds $0.42 in any quarterly period, such increase to become effective immediately prior to the opening of the Business Day following the date on which the Triggering Distribution is paid. It is expressly understood that a stock buyback, repurchase or similar transaction or program shall in no event be considered a Triggering Distribution for purposes of this Section 4.2(d) or Section 4.2(e). (e) In case the Company or any of its Subsidiaries shall purchase any of the Company’s Common Shares (excluding stock options) by means of a tender offer, other than an odd-lot offer ~~made~~ by the Company or any of its ~~Subsidiaries for all or any portion of Common Stock shall expire~~Subsidiaries, then, if effective immediately prior to the ~~tender offer shall require the payment to stockholders~~ opening of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading~~ Business Day ~~next succeeding~~ after the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (Ai) ~~the Fair Market Value of~~ the aggregate consideration (determined as set forth below) payable to ~~stockholders~~ shareholders of the Company based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (Bii) the product of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding (less any Purchased ~~Shares and excluding any shares held in the treasury of the Company~~Shares) at immediately after the Expiration Time and the ~~Closing~~ Current Market Price per share of the Common ~~Stock on the Trading Day next succeeding the Expiration Date~~ Shares, and the denominator ~~of which~~ shall be the product of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding (including Purchased ~~Shares but excluding any shares held in the treasury of the Company~~Shares) at immediately prior to the Expiration Time multiplied by the ~~Closing~~ Current Market Price ~~per share~~ as of the ~~Common Stock~~ close of business on ~~the Trading Day next succeeding~~ the Expiration Date. For purposes of this Section 4.2(e), the aggregate consideration in any such itender offer shall equal the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Trustees, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the Trustee) of any other consideration payable in such tender offer. In the event that the Company is obligated to purchase Common 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 Common Shares actually purchased. If the application of this Section 4.2(e) 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 4.2(e). For purposes of this Section 4.2(e), 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. (f) In any case in which this Section 4.2 shall require that an adjustment be made following a Record Date, an announcement date or a determination date or Expiration Date, as the case may be, established for purposes of this Section 4.2, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.5) issuing to the Holder of any Convertible Note converted after such Record Date or announcement date or determination date or Expiration Date the Common Shares and other Capital Stock of the Company issuable upon such conversion over and above the Common Shares and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Rate prior to adjustment; and, in lieu of the shares the issuance of which is so defined, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Rate is required to be made as of the Record Date or announcement date or determination date or Expiration Date therefor is not thereafter made or paid by the Company for any reason, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such record date had not been fixed or such announcement date or effective date or determination date or Expiration Date had not occurred. (g) No adjustment shall be made pursuant to this Section 4.2 if the Holders may participate in the transaction that would otherwise give rise to an adjustment pursuant to this Section 4.2 without conversion of such Holder’s Convertible Notes.

Appears in 2 contracts

Sources: Second Supplemental Trust Indenture (Capital Automotive Reit), Second Supplemental Trust Indenture (Capital Automotive Reit)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time (without duplication) by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 17.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any rights~~ rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights, options or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the ten (~~as determined in accordance with clause (8) of this Section 4.06(a)~~10) on Trading Days immediately preceding the ~~record~~ declaration date for ~~the determination of stockholders entitled to receive~~ such ~~rights or warrants~~distribution, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights, options 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 ~~record date~~ rights, options or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the sum of 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 ~~record date~~ rights, options or warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the ten (10) consecutive Trading Days immediately preceding the declaration date for such ~~record date~~distribution. Such adjustment shall be successively made ~~successively~~ whenever any such ~~rights~~ rights, options or warrants are issued, 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 ~~record date~~rights, options or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such rights, options 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~~ rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights~~ rights, options 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 ~~the record~~ such date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, options or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days immediately preceding the declaration date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such ~~rights~~ rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness, property or ~~other~~ assets (including rights, options, warrants and other securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, options or warrants referred to in Section ~~4.06(a)(3~~17.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~17.05(a)) (any of the “foregoing hereinafter in this Section 17.05(d) called the "Distributed ~~Securities”~~Property"), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such Distributed ~~Securities~~ Property for distribution to the ~~Holders~~ Debentureholders upon the conversion of ~~Securities on~~ the Debentures so that any such ~~dividend or distribution date (as~~ holder converting Debentures 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 Property that such holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Debentures into Common Stock immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Distributed Property) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property 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 that if the then Fair Market Value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Debentureholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive on the date of such ~~distribution~~dividend or distribution the amount of Distributed Property such holder would have received had such holder converted each Debenture on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~17.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (~~the “Spinoff Securities”), the Conversion Rate shall be adjusted,~~ unless ~~the Company makes an equivalent distribution~~ such capital stock or similar equity interests are distributed to the ~~Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate~~ Debentureholders in ~~effect on the record date fixed for the determination of stockholders entitled to receive~~ such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such ~~Securities~~ holders had ~~been~~ converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the their Debentures into shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntaryStock), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 ~~Expiration~~ Record Date with respect to such distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (A) the ~~Fair Market Value~~ average of the ~~aggregate consideration payable to stockholders based~~ Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" commences for such dividend or distribution on the ~~acceptance (up to any maximum specified in~~ New York Stock Exchange, the ~~terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time~~ NASDAQ National Market or such other national or regional exchange or market on which such securities are then listed or quoted (the ~~shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”~~"Ex-Dividend Date") ~~and~~ plus (B) the ~~product~~ average Closing Sales Prices of the ~~number~~ securities distributed in respect 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 Closing Price per~~ each share of Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day ~~next succeeding~~ after the ~~Expiration Date and~~ Ex-Dividend Date; and (ii) the denominator of which shall be the ~~product~~ average of the ~~number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the~~ Closing ~~Price per share~~ Sale Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day ~~next succeeding~~ after the ~~Expiration~~ Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided that the Company may in lieu of the foregoing adjustment make adequate provision so that each Debentureholder shall have the right to receive on the date of such distribution the amount of Distributed Property such holder would have received had such holder converted each Debenture on the Record Date with respect to such distribution; and provided further that if (x) the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date minus (y) the average of the Closing Sale Prices of the securities distributed in respect of each share Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date is less than $1.00, then the adjustment provided by for by this paragraph shall not be made and in lieu thereof the provisions of the first paragraph of this Section 17.05(d) shall apply to such distribution. In any case in which this paragraph is applicable, Section 17.05(a), Section 17.05(b) and the first paragraph of this Section 17.05(d) shall not be applicable. Rights, options or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events ("Trigger Event"): (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

Appears in 2 contracts

Sources: Indenture (Commscope Inc), Indenture (Commscope Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1i) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common ~~Stock~~Stock (other than dividends or distributions of shares of Common Stock with respect to which adjustments are provided for in Section 10.06(a)(ii)), the Conversion Rate in effect immediately prior to the record date for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by the Company by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator of shall be the sum of the number of shares of Common Stock outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (i), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2ii) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine or reclassify its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such ~~subdivision~~ subdivision, combination or ~~combination~~ reclassification becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination or reclassification of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such ~~subdivision~~ subdivision, combination or ~~combination~~ reclassification of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3iii) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) ix) of this Section ~~4.06(a~~10.06(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock ~~offered~~ that such rights or warrants entitle holders thereof to subscribe for or purchase (or into which ~~the~~ such convertible securities ~~so offered~~ are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants (or convertible securities) are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such ~~rights~~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 (or securities convertible into Common Stock) actually delivered. If 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 the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4iv) If the Company shall make a dividend or other distribution to all holders of its Common Stock of ~~shares of its~~ Capital Stock, other than Common Stock, or evidences of ~~Indebtedness~~ indebtedness or other assets ~~(including securities)~~ of the ~~Company~~ Company, including securities (excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section ~~4.06(a)(3~~10.06(a)(iii), (y) dividends ~~and~~ or distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section ~~4.10 and~~ 10.10, or pursuant to any Rights Plan to the extent such Holder receives the rights related to such Rights Plan upon conversion or (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section ~~4.06(a)(6~~10.06(a)(vi)) (the “Distributed ~~Securities~~Notes”), then in each such case (unless the Company distributes such Distributed ~~Securities~~ Notes for distribution to the Holders of ~~Securities~~ Notes on such dividend or distribution date (as if each Holder had converted such ~~Security~~ Note into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be ~~the~~ Current Market Price per share on such record date less the fair market value (as determined in good faith by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) on such record date of the portion of the Distributed ~~Securities~~ Notes so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 ~~then Fair Market Value~~ fair market value (as so determined) of the portion of the Distributed ~~Securities~~ Notes so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a ~~Security~~ Note shall have the right to receive upon conversion the amount of Distributed ~~Securities~~ Notes so distributed that such Holder would have received had such Holder converted each ~~Security~~ Note on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~10.06(a)(iv) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff ~~Securities~~Notes”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the ~~Securities~~Notes, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 ten consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the ~~New York Stock Exchange, NASDAQ~~ Nasdaq Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed ~~or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (B) the ~~product~~ average of ~~(i)~~ the ~~average~~ Closing ~~Price~~ Prices over the Spinoff Valuation Period of the Spinoff ~~Securities~~ Notes multiplied by ~~(ii)~~ the number of Spinoff ~~Securities~~ Notes distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of ~~Securities~~ Notes shall have the right to receive upon conversion thereof the amount of such Spinoff ~~Securities~~ Notes that such Holder of ~~Securities~~ Notes would have received if such ~~Securities~~ Notes had been converted on the record date with respect to such distribution. (5v) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan of the Company that the Company implements after the date of this Indenture (~~each~~ a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section ~~4.06~~ 10.06 upon conversion of the Notes into Common Stock, to the extent that such Rights Plan is in effect ~~at the time of any~~ upon such conversion, the Holders of ~~Securities~~ Notes will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan ~~and the~~ so that Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the ~~Securities~~ Notes as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed ~~Securities~~ Notes constituting such rights as provided in the first paragraph of clause (4iv) of this Section ~~4.06(a~~10.06(a), subject to appropriate readjustment in the event of the expiration, ~~redemption~~termination, ~~termination~~ repurchase or ~~repurchase~~ redemption of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section ~~4.06(a~~10.06(a). Other than as specified in this clause (5v) of this Section ~~4.06(a~~10.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6vi) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), ) the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such ~~Triggering Distribution~~ cash dividend or distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of ~~such Triggering Distribution~~ cash dividend or distribution applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a ~~Security~~ Note shall have the right to receive upon ~~conversion,~~ conversion the amount of cash so distributed that such Holder would have received had such Holder converted each ~~Security~~ Note on such Determination 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 divided or distribution had not been declared. (7vii) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (determined as provided below) that exceeds ~~the~~ Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the ~~Fair Market Value~~ fair market value of the aggregate consideration (the fair market value as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to ~~stockholders~~ shareholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such it

Appears in 2 contracts

Sources: Indenture (Providence Service Corp), Indenture (Providence Service Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company ~~shall~~ shall, at any time or from time to time while any of the Securities are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders ~~of outstanding Common Stock in shares~~ of Common Stock, the Conversion Rate ~~in effect immediately prior to~~ will be adjusted based on the ~~record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying~~ following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately ~~prior to~~ preceding the Ex-Dividend Date for such ~~record date by a fraction of which~~ dividend or distribution; CR1 = the ~~numerator shall be~~ Conversion Rate in effect on the ~~sum of~~ Ex-Dividend Date for such dividend or distribution; OS0 = the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on ~~such record date plus~~ the ~~total number of shares of Common Stock constituting~~ Trading Day immediately preceding the Ex-Dividend Date for such dividend or ~~other distribution~~ distribution; and ~~of which the denominator shall be~~ OS1 = the number of shares of Common Stock that would be outstanding ~~at the close of business on such record date. Such adjustment shall be made successively whenever any~~ immediately after, and solely as a result of, such dividend or ~~distribution is~~ distribution. Any adjustment made ~~and~~ pursuant to this Section 6.04(a) shall become effective immediately ~~after~~ prior to the Open of Business on the Ex-Dividend Date for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or ~~make any distribution on Common Stock held in the treasury of the Company~~distribution. If any dividend or distribution that is the subject of ~~the type described in~~ this ~~clause~~ Section 6.04(a) is declared but not so paid or made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ readjusted, effective as of the date the Company publicly announces its decision not to make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) For purposes of this Section ~~4.06(a~~6.04(a)~~) on the record date for the determination of stockholders entitled to receive such rights or warrants~~, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the Ex-Dividend Date for such ~~record date plus the number of additional~~ dividend or distribution shall not include shares of Common Stock ~~offered~~ held in treasury, if any. The Company will not pay any dividend or make any distribution on Common Stock held in treasury, if any. (~~or into which the convertible securities so offered are convertible~~b) ~~and~~ In case outstanding shares of ~~which the denominator~~ Common Stock shall be subdivided into a greater number of shares of Common Stock or combined into a smaller number of shares of Common Stock, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the effective date of such subdivision or combination; CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the effective date of such ~~record date plus~~ subdivision or combination; and OS1 = the number of shares ~~which~~ of Common Stock that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Any adjustment made pursuant to this Section 6.04(b) shall become effective immediately prior to the Open of Business on the effective date of such subdivision or combination. (c) In case the Company shall issue rights (other than rights issued pursuant to a stockholder rights plan) or warrants to all or substantially all holders of Common Stock entitling them to purchase, for a period expiring within 45 calendar days of the date of announcement, Common Stock at an aggregate ~~offering~~ price per share less than the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date that the issuance of the rights or warrants was first publicly announced, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; X = the total number of shares of Common Stock ~~so offered for subscription~~ issuable pursuant to such rights or ~~purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying~~ warrants; and Y = the number of shares of Common Stock ~~issuable upon conversion~~ equal to the quotient of (x) the aggregate price payable to exercise such ~~convertible securities~~ rights or warrants divided by (y) the ~~Conversion Price per share~~ average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. Any adjustment made pursuant to ~~the terms of such convertible securities~~this Section 6.04(c) ~~would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and~~ shall become effective immediately ~~after~~ prior to the Open of Business on the Ex-Dividend Date for such ~~record date~~issuance. In the event that such rights or warrants described in this Section 6.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not exercised prior to their expiration or shares of Common Stock ~~(or securities convertible into Common Stock)~~ are otherwise not delivered ~~after~~ pursuant to such rights or warrants upon the ~~expiration~~ exercise of such ~~rights~~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 the delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In ~~determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in~~ determining the aggregate ~~offering~~ price ~~of the total number of shares of Common Stock so offered~~payable to exercise such rights or warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and ~~any amount payable on exercise or conversion thereof,~~ the value of such ~~consideration,~~ consideration (if other than cash, to be determined by the Company’s Board of Directors~~. (4) If the Company shall make a dividend or other distribution to all holders~~ ). For purposes of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to this Section ~~4.06(a)(3~~6.04(c), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately preceding the Ex-Dividend Date for such ~~record date~~issuance shall not include shares of Common Stock held in treasury, if any. The Company will not issue any rights or warrants in respect of shares of Common Stock held in treasury, if any. (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock, shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, but excluding: (i) any dividends or distributions referred to in Section 6.04(a) above; (ii) shares delivered in connection with subdivisions of Common Stock referred to in Section 6.04(b) above; (iii) any rights or warrants referred to in Section 6.04(c) above; (iv) any rights or warrants referred to in the last paragraph of this Section 6.04(d) below (to the extent and as specified therein)~~. Such adjustment shall~~ ; (v) any dividends or distributions referred to in Section 6.04(e) below; and (vi) any Public Spin-Offs to which the provisions set forth below in this Section 6.04(d) applies, then for these non-excluded transactions and events, the Conversion Rate will be ~~made successively whenever any~~ adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ - FMV where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors) on the Ex-Dividend Date for such distribution is of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or assets, including securities, so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this Section 6.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Company (i.e. a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x FMV0 + MP0 MP0 where CR0 = the Conversion Rate in effect at the Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interests distributed in the Public Spin-Off to holders of Common Stock applicable to one share of Common Stock during the 10 consecutive Trading Day period commencing on and including the effective date of the Public Spin-Off (the “Public Spin-Off Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock during the Public Spin-Off Valuation Period. Any adjustment made ~~and~~ pursuant to this Section 6.04(d) shall become effective immediately ~~after~~ prior to the ~~record date~~ Open of Business on the Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such distribution. ~~In the event that such~~ If any dividend or distribution of the type described in this Section 6.04(d) is declared but not so paid or made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ readjusted, effective as of the date the Company publicly announces its decision not to be pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If an adjustment to the ~~then Fair Market Value (as so determined~~Conversion Rate is required pursuant to this Section 6.04(d) during any settlement period in respect of Securities that have been tendered for conversion, delivery of the ~~portion of~~ related conversion consideration will be delayed to the ~~Distributed Securities so distributed applicable~~ extent necessary in order to ~~one share of Common Stock is equal to or greater than~~ complete the ~~Current Market Price per share of the Common Stock on such record date,~~ calculations provided for in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record datethis Section 6.04(d). ~~If the Board of Directors determines the Fair Market Value of any distribution for~~ For purposes of this Section ~~4.06(a)(4) by reference to the actual~~ 6.04(d), rights 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. Notwithstanding the foregoing, if the securities warrants distributed by the Company to all or substantially all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock of(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 shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.04(d) (and no adjustment to the Conversion Rate under this Section 6.04(d) 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 6.04(d), except as set forth in Section 6.15. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or 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 Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Section 6.15. In addition, except as set forth in Section 6.15, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 6.04(d) was made (including any adjustment contemplated by Section 6.15), (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution~~ per share redemption or repurchase price received by a ~~fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share~~ holder or holders of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such ~~distribution. (5) With respect to any~~ rights or warrants (~~the “Rights”) that may be issued~~ assuming such holder had retained such rights or ~~distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”~~warrants), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed made to all holders of Common Stock ~~Distributed Securities~~ as ~~provided~~ of the date of such redemption or repurchase, and (2) in the ~~first paragraph~~ case of ~~clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of~~ such rights or ~~warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph~~ warrant that shall ~~not constitute a distribution of rights~~ have expired or ~~warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a)~~been terminated without exercise by any holders thereof, ~~there will not be any adjustment to~~ the Conversion Rate shall be readjusted as ~~the result of the issuance of any Rights, the distribution of separate certificates representing~~ if such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights~~rights and warrants had not been issued. (6e) If In case the Company ~~shall, by~~ shall pay a dividend or ~~otherwise, at any time~~ otherwise distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of ~~its~~ Common Stock a ~~payment~~ dividend or other distribution consisting exclusively of cash (excluding any dividend or distribution made in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate ~~shall~~ will be ~~increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business~~ adjusted based on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying formula: CR1 = CR0 x ▇▇▇ ▇▇▇ - C where CR0 = the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share~~ Close of ~~Common Stock~~ Business on the Trading Day ~~next succeeding~~ immediately preceding the ~~Expiration~~ Ex-Dividend date for such dividend or distribution; CR1 = the Conversion Rate in effect on the Ex-Dividend Date ~~and~~ for such dividend or distribution; SP0 = the ~~denominator of which shall be the product~~ average of the ~~number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share~~ Last Reported Sale Prices of the Common Stock on during the 10 consecutive Trading Day period ending on, and including, the Trading Day ~~next succeeding~~ immediately preceding the ~~Expiration Date,~~ Ex-Dividend Date for such idividend or distribution; and

Appears in 2 contracts

Sources: First Supplemental Indenture (Evergreen Solar Inc), First Supplemental Indenture (Evergreen Solar Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If the Company shall pay a dividend or make a distribution to all or substantially all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all or substantially all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all or substantially all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the ~~fair market value~~ Fair Market Value (as determined by reference to the Current Market Price of the Distributed Securities, or in the absence of a Current Market Price of the Distributed Securities, the Fair Market Value thereof) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all or substantially all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iShare

Appears in 2 contracts

Sources: Indenture (General Cable Corp /De/), Indenture (General Cable Corp /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall ~~pay~~ issue shares of Common Stock as a dividend or ~~make a~~ distribution to ~~all~~ holders of all or substantially all of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock in or combination into a lesser number of shares of Common Stock, the Conversion Rate shall be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the ~~record date~~ Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such ~~dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying~~ event; CR’ = the Conversion Rate in effect immediately ~~prior to~~ after the Ex-Dividend Date for such ~~record date by a fraction of which the numerator shall be the sum of~~ event; OS0 = the number of shares of Common Stock outstanding at immediately prior to the ~~close of business on~~ Ex-Dividend Date for such ~~record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be~~ event; OS’ = the number of shares of Common Stock outstanding at immediately after the ~~close of business on~~ Ex-Dividend Date for such ~~record date~~event. Such adjustment ~~shall be made successively whenever any such dividend or distribution is made and~~ shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the Record Date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 13.04(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall ~~again~~ be ~~adjusted~~ 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 then be in effect if such ~~dividend~~ dividend, distribution, subdivision or ~~distribution~~ combination had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any rights~~ to all or substantially all holders of its outstanding shares of Common Stock rights or warrants entitling them (for a period expiring within 45 sixty (60) calendar days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the ~~Current Market Price per share~~ average of the Last Reported Sale Prices of the Common Stock ~~and in determining~~ over the ~~aggregate offering price~~ ten consecutive Trading Day period ending on the Business Day immediately preceding the date of announcement of such issuance, the ~~total number of shares of Common Stock so offered, there~~ Conversion Rate shall be ~~taken into account any consideration received by~~ adjusted based on the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) following formula: where CR0 = the Conversion Rate in effect immediately prior to the ~~record date fixed~~ Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such ~~dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying~~ event; CR’ = the Conversion Rate in effect immediately ~~prior to~~ after the Ex-Dividend Date for such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of event; OS0 = the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the ~~opening of business on the fifteenth Trading Day after the date on which ex~~Ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date Dividend Date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ievent;

Appears in 2 contracts

Sources: Indenture (Sandisk Corp), Indenture (Sandisk Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of shareholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ immediately preceding the ~~record~~ date ~~for~~ such distribution is first publicly announced by the ~~determination of stockholders entitled to receive such rights or warrants~~Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the Current Market Price ~~per share of Common Stock on~~ immediately preceding the date such ~~record date. Such~~ distribution is first publicly announced by the Company, such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price ~~per share of Common Stock~~ immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~14.05(a) (any of the foregoing hereinafter in this Section 14.05(d) called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that, if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Time plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ Fair Market Value of the ~~Spinoff Securities multiplied by (ii~~securities distributed in respect of each share of Common Stock for which this Section 14.05(d) applies, which shall equal the number of ~~Spinoff~~ Securities distributed in respect of ~~one~~ each share of Common Stock multiplied by the average of the closing sale prices of those Securities distributed (where such closing sale prices are available) for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time; and (iii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 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 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.05(d) and Sections 14.05(a) and 14.05(b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and 14.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of shareholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 14.05(a) and 14.05(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 14.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the record date for~~ such ~~Triggering Distribution (a “Determination Date”)~~ Record Date by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination~~ such Record Date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ Record Date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a Fair Market Value (~~determined~~ as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such idet

Appears in 2 contracts

Sources: Indenture (China Security & Surveillance Technology, Inc.), Indenture (China Security & Surveillance Technology, Inc.)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted without duplication from time to time by the ~~Company~~ Issuer as follows: (1a) If the ~~Company~~ Issuer shall pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the open of business on the Ex-Dividend Date for such ~~record date~~ dividend or other distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (A) the number of shares of Common Stock outstanding at immediately prior to the ~~close~~ open of business on the Ex-Dividend Date for such ~~record date~~ dividend or distribution, plus (B) the total number of shares of Common Stock constituting ~~such~~ the dividend or ~~other distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at immediately prior to the ~~close~~ open of business on ~~such record date. Such adjustment shall be made successively whenever any~~ the Ex-Dividend Date for such dividend or ~~distribution is made and shall~~ distribution, such increase to become effective immediately after the open of business on the Ex-Dividend Date for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or ~~make any distribution on Common Stock held in the treasury of the Company~~distribution. If any dividend or distribution of the type described in this ~~clause~~ Section 14.5(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company Issuer shall issue ~~any rights~~ rights, warrants or options to all holders of its outstanding shares of Common Stock (other than pursuant to any dividend reinvestment plan or share repurchase plan) entitling them (for a period expiring ~~within 45~~ not more than 60 days after the date of distribution for such ~~distribution~~rights, warrants or options) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share of~~ average Common Stock ~~(as determined in accordance with clause (8)~~ Price of ~~this Section 4.06(a))~~ the Common Stock for the five Trading Days ending on the earlier of the record date for such distribution and the ~~determination of stockholders entitled~~ Trading Day immediately prior to ~~receive~~ the Ex-Dividend Date for such ~~rights or warrants~~distribution, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the open of business on the Ex-Dividend Date for such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (A) the number of shares of Common Stock outstanding at immediately prior to the ~~close~~ open of business on the Ex-Dividend Date for such ~~record date~~ distribution, plus (B) the total number of ~~additional~~ shares of Common Stock ~~offered~~ issuable pursuant to such rights, warrants or options; and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be (1) the number of shares of Common Stock outstanding at immediately prior to the ~~close~~ open of business on the Ex-Dividend Date for such ~~record date~~ distribution, plus ~~the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase~~ (~~or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying~~ 2)(a) the number of shares of Common Stock ~~issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant~~ equal to the ~~terms of~~ aggregate price payable to exercise such ~~convertible securities~~rights, warrants or options, divided by (b) ~~would purchase at~~ the Current Market Price ~~per share~~ as of ~~Common Stock on~~ the Trading Day immediately preceding the Ex-Dividend Date for the distribution of such ~~record date~~rights, warrants or options. Such adjustment shall be successively made ~~successively~~ whenever any such ~~rights~~ rights, warrants or options are issued, and shall become effective immediately after the open of business on the Ex-Dividend Date for such ~~record date~~distribution. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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~~ rights, warrants or options been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If 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 the ~~record date~~ Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such ~~rights~~ distribution had not ~~been fixed~~occurred. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than the ~~Current Market Price per share of~~ average Common Stock Price of the Common Stock for the five Trading Days ending on the earlier of the record date for such distribution and the Trading Day immediately prior to the Ex-Dividend Date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the ~~Company~~ Issuer for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of ~~Directors~~Directors (whose determination shall be conclusive evidence of such value). Notwithstanding the foregoing, no adjustment to the Conversion Rate will be made pursuant to this Section 14.5(b) if Holders of the Securities are entitled to participate in the relevant distribution triggering an adjustment at the same time and otherwise on substantially the same terms as holders of the Common Stock as if such Holders of Securities had converted their Securities into solely Common Stock immediately prior to such distribution at the then-applicable Conversion Rate. In no event shall the Conversion Rate be decreased pursuant to this Section 14.5(b). (4c) If outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the open of business on the day that such subdivision becomes effective shall be proportionately increased, and conversely, if outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the open of business on the day that such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the open of business on the day that such subdivision or combination becomes effective. (d) If the ~~Company shall make a~~ Issuer shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its~~ any class of Capital ~~Stock,~~ Stock of the Issuer or other ~~than Common Stock, or evidences of Indebtedness~~ securities or other assets ~~(including securities) of the Company~~ (excluding (x) any ~~issuance of rights for which an adjustment was made pursuant to~~ dividend or distribution described in Section ~~4.06(a)(3~~14.5(a), (y) ~~dividends and distributions~~ any rights, options or warrants described in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section ~~4.10~~ 14.5(b) and (z) any dividend or distribution ~~paid exclusively~~ described in ~~cash for which an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~14.5(e)) (any of the foregoing hereinafter in this section 14.4(d) called the “Distributed ~~Securities~~Assets”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock~~ immediately ~~prior to the record date with respect to such distribution))~~ succeeding paragraph, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the open of business on the Ex-Dividend Date for such ~~record date~~ dividend or distribution by a ~~fraction~~ fraction, (i) the numerator of which shall be the ~~numerator~~ Current Market Price per share of the Common Stock on the Ex-Dividend Date for such dividend or distribution; and (ii) the denominator of which shall be the Current Market Price per share of the Common Stock on such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ Ex-Dividend Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current~~ Board of Directors (whose determination shall be conclusive evidence of such Fair Market ~~Price~~ Value) and described in a resolution of the ~~Distributed Securities~~Board of Directors) on the Ex-Dividend Date for such ~~record date~~ dividend or distribution of the portion of the Distributed ~~Securities~~ Assets so distributed applicable to one share of Common Stock, such adjustment to become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; provided, however, that if the Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than such Current Market Price per share of the Common Stock, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive on the ~~basis~~ date on which the Distributed Assets are distributed to holders of Common Stock, for each $1,000 principal amount of Securities, the amount of Distributed Assets such Holder would have received had such Holder owned a number of shares of Common Stock ~~outstanding at~~ equal to the ~~close of business~~ Conversion Rate on the Ex-Dividend Date for such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.5(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. ~~Notwithstanding~~ If any Distributed Assets requiring any adjustment pursuant to this Section 14.5(d) consist solely of the ~~foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of~~ Capital ~~Stock of~~Stock, or similar equity interests in, a Subsidiary or other business unit of the ~~Company (~~Issuer that are or in connection with such distribution will be listed or quoted for trading on a U.S. national or regional securities exchange, then in lieu of the ~~“Spinoff Securities”)~~adjustment provided for in the immediately preceding paragraph, the Conversion Rate in effect at the close of business on the tenth Trading Day immediately following, and including, the effective date of such distribution shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined~~ increased by multiplying the Conversion Rate then in effect ~~on the record date fixed for the determination of stockholders entitled to receive such distribution~~ by a fraction, , (A) the numerator of which ~~shall be~~ is the sum of (A1) the average ~~Closing Price~~ of ~~one~~ the Common Stock Prices (determined, for purposes of such definition, as if the amount of Distributed Assets per share of Common Stock ~~over~~ were a share of Common Stock) of such Distributed Assets for the 10 ~~consecutive~~ Trading ~~Day period~~ Days commencing on on, and ~~including~~ including, the ~~fifth Trading Day after the~~ effective date ~~on which ex-dividend trading commences for~~ of such distribution on the New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which such Distributed Assets are then listed or quoted, plus (2) the average of the Common Stock Prices of the Common Stock for the 10 Trading Days commencing on and including the effective date of such distribution on the New York Stock Exchange or such other national or regional exchange or market on which such Distributed Assets are then listed or quoted, and (B) the denominator of which is the average of the Common Stock Prices of the Common Stock for the 10 Trading Days commencing on and including the effective date of such distribution on the New York Stock Exchange or such other national or regional exchange or market on which the ~~Common Stock is~~ Distributed Assets are then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Periodquoted, such adjustment to become effective immediately ~~prior to~~ after the ~~opening~~ close of business on the ~~fifteenth~~ tenth Trading Day ~~after~~ immediately following, and including, the effective date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such ~~Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such~~ distribution~~. (5) With respect to any rights~~ . Rights or warrants (distributed by the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed Issuer to all holders of Common Stock ~~Distributed Securities as provided~~ entitling the Holders thereof to subscribe for or purchase shares of the Issuer’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 14.5(d) (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 14.5(d) shall 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 14.5(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend 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 14.5(d) 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 14.5(d), Section 14.5(a) and Section 14.5(b), any dividend or distribution to which this Section 14.5(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 ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of Capital Stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.5(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 14.5(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Ex-Dividend Date for such dividend or distribution shall be substituted for “the Ex-Dividend Date for such dividend or distribution” within the meaning of Section 14.5(a), Section 14.5(b) and Section 14.5(d) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding immediately prior to the ~~termination~~ open of business on the Ex-Dividend Date for such dividend or ~~invalidation~~ distribution” within the meaning of ~~any Rights~~Section 14.5(a). Notwithstanding the foregoing, no adjustment to the Conversion Rate will be made pursuant to this Section 14.5(d) if Holders of the Securities are entitled to participate in the relevant distribution triggering an adjustment at the same time and otherwise on substantially the same terms as holders of the Common Stock as if such Holders of Securities had converted their Securities into solely Common Stock immediately prior to such distribution at the then-applicable Conversion Rate. In no event shall the Conversion Rate be decreased pursuant to this Section 14.5(d). (6e) If In case the ~~Company~~ Issuer shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (an “Extraordinary Cash Dividend”) (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~Issuer, whether voluntary or involuntary), ~~the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business~~ or any regular quarterly cash dividend on ~~the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of~~ the Common Stock on to the ~~Determination Date and~~ extent that the ~~denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the~~ aggregate amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash ~~so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock ~~having a Fair Market Value~~ does not exceed $0.31 for any quarterly period (~~determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (~~$0.31 being the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration TimeQuarterly Dividend Threshold Amount”)), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the ~~close~~ open of business on the ~~Expiration~~ Ex-Dividend Date for such Extraordinary Cash Dividend by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of (A) the Fair~~ Current Market ~~Value~~ Price of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the ~~Trading Day next succeeding~~ Record Date for such Extraordinary Cash Dividend, minus the ~~Expiration Date and~~ Quarterly Dividend Threshold Amount, and (ii) the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing such Current Market Price ~~per share~~ of the Common Stock on ~~the Trading Day next succeeding the Expiration~~ such Record Date, ~~such i~~minus the

Appears in 2 contracts

Sources: Supplemental Indenture (Gannett Co Inc /De/), Supplemental Indenture (Gannett Co Inc /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Base Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Base Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 11.11(a) is declared but not so paid or made, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on~~ for the ~~record~~ 10 Trading Days preceding the declaration date for ~~the determination of stockholders entitled to receive~~ such ~~rights or warrants~~distribution, the Base Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days preceding the declaration date for such ~~record date~~distribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~rights or warrants, the Base Conversion Rate shall be readjusted to the Base 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. If such rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate that would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Base 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 be combined into a smaller number of shares of Common Stock, the Base 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding (x) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~11.11(b), (y) ~~dividends and distributions~~ any dividend or distribution (I) paid exclusively in ~~connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ cash or ~~conveyance resulting~~ (II) referred to in ~~a change in the conversion consideration pursuant to~~ Section ~~4.10~~ 11.11(a) and (z) any ~~dividend or~~ distribution ~~paid exclusively~~ referred to in ~~cash for which an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~11.11(g)) (any of the “foregoing hereinafter in this Section 11.11(d) called the "Distributed Securities”")), ~~then~~ then, in each such ~~case (unless~~ case, the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Base Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying 66 the Base Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed Securities so distributed applicable to one share of Common ~~Stock (determined on~~ Stock, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event Record Date; provided 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share of~~ on the ~~Common Stock on such record date~~Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder of a Security~~ Holder shall have the right to receive upon conversion the amount of Distributed Securities ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on the Record Date. If such ~~record date~~dividend or distribution is not so paid or made, the Base Conversion Rate shall again be adjusted to be the Base 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 ~~4.06(a)(4~~11.11(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 on the ~~Common Stock~~applicable Record Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist of Capital Stock of,~~ entitling the holders thereof to subscribe for or ~~similar equity interests in, a Subsidiary or other business unit~~ purchase shares of the ~~Company~~ Company's capital stock (~~the “Spinoff Securities”~~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 11.11 (and no adjustment to the Base Conversion Rate under this Section 11.11 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 Base Conversion Rate shall be ~~adjusted~~made under this Section 11.11(d). If any such right or warrant, ~~unless the Company makes an equivalent distribution~~ including any such existing rights or warrants distributed prior to the ~~Holders~~ 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 ~~Securities, so that the same~~ 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 Base Conversion Rate under this Section 11.11 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 Base 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 ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 thereof, the Base Conversion Rate ~~in effect on~~ shall be readjusted as if such expired or terminated rights and warrants had not been issued. For purposes of this Section 11.11(d) and Section 11.11(a) and (b), any dividend or distribution to which this Section 11.11(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 ~~record~~ evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Base Conversion Rate adjustment required by this Section 11.11(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 Base Conversion Rate adjustment required by Sections 11.11(a) and 11.11(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”meaning of Section 11.11(a) and 11.11(b) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 11.11(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of cash~~ cash, excluding (~~excluding~~ i) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or ~~involuntary~~involuntary or (ii) any quarterly cash dividend on the Common Stock to the extent that the aggregate cash dividend per share of Common Stock in any quarter does not exceed $0.10 (the "Dividend Threshold Amount"), then, in such case, the Base Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Base Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common Stock (determined ~~on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date~~as set forth below), such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 11.11(e) as a result of a distribution that is a quarterly cash dividend, such adjustment shall be based upon the amount by which such distribution exceeds the Dividend Threshold Amount. If an adjustment is required to be made as set forth in this Section 11.11(e) above as a result of a distribution that is not a quarterly cash dividend, such adjustment shall be based upon the full amount of the distribution. If an adjustment or readjustment is made to the Base Conversion Rate pursuant to this Section 11.11 (other than any adjustment pursuant to Section 11.11(e)), an appropriate inversely proportional adjustment shall be made to the Dividend Threshold Amount. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “"Expiration ~~Date”~~Time") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the ~~last time at which such tenders could have been made on~~ average of the Closing Sale Price of a share of Common Stock for each of the 10 consecutive Trading Days next succeeding the Expiration ~~Date is hereinafter sometimes called the “Expiration~~ Time”), the Base Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect immediately prior to the ~~close of business on the~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the “"Purchased Shares”") and (By) 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~~Shares) at the Expiration Time and the average of the Closing Sale Price ~~per~~ of a share of Common Stock on for each of the 10 consecutive Trading ~~Day~~ Days next succeeding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including ~~Purchased Shares but excluding~~ any ~~shares held in the treasury of the Company~~tendered or exchanged shares) at the Expiration Time multiplied by the average of the Closing Sale Price ~~per~~ of a share of ~~the~~ Common Stock ~~on the Trading Day next succeeding the Expiration Date, such i~~for each of

Appears in 2 contracts

Sources: Indenture (American Express Co), Indenture (American Express Co)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate applicable to any series of Securities shall be ~~adjusted from time~~ subject to ~~time by the Company~~ adjustment as follows: (1a) If In case the Company shall (i) pay a ~~dividend~~ dividend, or make a ~~distribution to all holders of outstanding Common Stock~~ distribution, in shares of Common Stock, on the Common Stock, (ii) subdivide the Outstanding Common Stock into a greater number of shares, (iii) combine the Outstanding Common Stock into a smaller number of shares, or (iv) reclassify the Common Stock, the Conversion Rate in effect immediately prior to thereto shall be adjusted so that the ~~record date~~ Holder of any Security thereafter surrendered for ~~the determination of stockholders~~ conversion shall be entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock ~~outstanding at~~ which such Holder would have owned or have been entitled to receive after the ~~close~~ happening of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the ~~Company. The Company will not pay any dividend or make any distribution on Common Stock held in~~ events described above had such Security been converted immediately prior to the ~~treasury~~ happening of ~~the Company~~such event. If any dividend or distribution of the type described in ~~this~~ clause (i) above is ~~declared but~~ not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared~~. (2~~. An adjustment made pursuant to this Section 11.4(a) If shall become effective immediately after the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs dividend and shall become effective immediately after the effective date ~~upon which such subdivision~~ in the case of subdivision, combination or ~~combination becomes effective~~reclassification. (3b) If In case the Company shall issue ~~any rights~~ rights, options or warrants to all holders of any class or series of its ~~outstanding~~ Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights, options or warrants) to subscribe for or purchase ~~shares of~~ Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current~~ Average Closing Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ at the record date for the determination of stockholders entitled to receive such ~~rights~~ rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the ~~rate~~ Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the date of the issuance of such ~~record date~~ rights, options or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at on the ~~close~~ date of ~~business on~~ issuance of such ~~record date~~ rights, options or warrants plus the number of additional shares of Common Stock offered (for subscription or ~~into which the convertible securities so offered are convertible)~~ purchase, and of which the denominator shall be the number of shares of Common Stock outstanding at on the ~~close~~ date of ~~business on~~ issuance of such ~~record date~~ rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the Current~~ such Average Closing Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the record date for the determination of the stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights~~ rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if ~~the~~ such record date for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current~~ such Average Closing Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such ~~rights and any amount payable on exercise~~ rights, options or ~~conversion thereof~~warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of ~~its~~ any class or series of Common Stock (excluding any distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary) any shares of ~~its Capital Stock,~~ any class of capital stock of the Company (other than Common Stock, ) or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (~~including securities~~other than Cash) or rights, options or warrants to subscribe for or purchase any of its Securities (excluding those referred to in Section 11.4(b) hereof) (any of the ~~Company (excluding (x~~foregoing hereinafter in this Section 11.4(c) ~~any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3~~called the "Distributed Securities"), ~~(y) dividends and distributions in connection with a reclassification~~then, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the ~~rate~~ Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the date of such ~~record date~~ distribution by a fraction of which the numerator shall be the ~~Current~~ Average Closing Market Price ~~per share of~~ on 38 44 the ~~Common Stock on such~~ record date described below, and ~~of which~~ the denominator shall be the ~~Current~~ Average Closing Market Price ~~per share~~ on such record date less the fair market value on such record date (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors of the ~~Distributed Securities~~Company, whose determination shall be conclusive, and described in a certificate filed with the Trustee) ~~on such record date of the portion~~ of the Distributed Securities so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date)~~Stock. Such adjustment ~~shall be made successively whenever any such distribution is made and~~ shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In Notwithstanding the foregoing, 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the ~~Current~~ Average Closing Market Price ~~per share of~~ on the ~~Common Stock on such~~ record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder of a Security~~ Holder shall have the right to ~~receive~~ receive, upon conversion of such Holder's Securities, the amount of Distributed Securities ~~so distributed that~~ such Holder would have received had such Holder converted ~~each Security~~ such Securities on such record date. In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such distribution had not been declared. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~11.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing ~~the Current~~ such Average Closing Market ~~Price of the Common Stock~~Price. Notwithstanding the ~~foregoing, if the securities distributed by the Company to all holders~~ foregoing provisions of ~~its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”~~this Section 11.4(c), ~~the Conversion Rate~~ no adjustment shall be ~~adjusted, unless~~ made thereunder for any distribution of Distributed Securities if the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate proper provision so that each Holder of ~~Securities shall have the right to receive upon conversion thereof the amount of~~ a Security who converts such ~~Spinoff Securities that~~ Security (or any portion thereof) after such ~~Holder of Securities would have received if such Securities had been converted on the~~ record date ~~with respect to~~ for such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not distribution shall be entitled to receive ~~any rights~~ upon such conversion, in ~~respect of~~ addition to the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount and kind of ~~cash so distributed~~ Distributed Securities that such Holder would have ~~received had~~ been entitled to receive if such Holder had, immediately prior to such record date, converted ~~each~~ such Security on for Common Stock; provided that, with respect to any Distributed Securities that are convertible, exchangeable or exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of such ~~Determination Date~~Security would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Security. In the event the Company implements a stockholder rights plan, such rights plan shall provide that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock issuable upon such ~~dividend or distribution is not so paid or made~~conversion, the ~~Conversion Rate shall again be adjusted~~ rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to be separate from the ~~Conversion Rate that would then be in effect if such divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of~~ Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately or prior to the ~~close~~ time of business on the Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iconversion).

Appears in 2 contracts

Sources: Indenture (Peter Kiewit Sons Inc /De/), Indenture (Kiewit Materials Co)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on Common Stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall each be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock~~any class of capital stock, or ~~evidences of Indebtedness or~~ other ~~assets~~ property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)~~1) of this Section) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 12.4) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of Directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid. If the amount~~ determination of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right stockholders entitled to receive ~~upon conversion~~such distribution. If, ~~the amount of cash so distributed that~~ after any such ~~Holder would have received had~~ date fixed for determination, any such ~~Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as 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 offer ~~made~~ by the Company or any of its ~~Subsidiaries~~ subsidiaries for all or any portion of the Common Stock ~~shall expire, then, if~~ 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 ~~offer shall require~~ amount") exceeds 12.5% of the ~~payment to stockholders~~ product of ~~consideration~~ the current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 12.4) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the ~~aggregate consideration payable~~ Common Stock on such date for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 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,~~ 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 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 (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding~~ 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 12.4). (8) For the purpose of any ~~shares held~~ computation under paragraphs (2), (4), (5) or (6) 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 deemed to be the average of the daily Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 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 ~~treasury~~ 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 Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. 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) Notwithstanding the foregoing provisions of this Section, no adjustment of the Conversion Rate shall be 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 or any successor rule thereto. (12) 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, the reduction is irrevocable during such period, and the Board of Directors shall have made a determination that such reduction would be in the best interests of the Company~~) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date~~, which determination shall be conclusive; provided, however, that no such ireduc

Appears in 2 contracts

Sources: Indenture (Cirrus Logic Inc), Indenture (Cirrus Logic Inc)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If~~ In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on its Common Stock exclusively in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be ~~increased~~ adjusted so that ~~the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by~~ a ~~fraction of which the numerator~~ Holder upon conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting~~ it would have been entitled to after such dividend or other distribution ~~and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any~~ if it had converted its Security immediately prior to such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 declaredother distribution. (2b) If In case the Company shall ~~subdivide~~ pay or make a dividend or other distribution on its ~~outstanding~~ Common Stock ~~into a greater number of shares~~consisting exclusively of, or ~~combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective~~ shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall otherwise issue ~~any rights~~ to all holders of its ~~outstanding~~ Common ~~Stock~~ Stock, rights, warrants or options entitling ~~them (~~the holders thereof, for a period ~~expiring within~~ not exceeding 45 ~~days after such distribution)~~ days, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in Section 12.04(g)) of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ price of the total number of shares so offered would purchase at the current market price per share (determined as provided in Section 12.04(g)), such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. (c) In case outstanding shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which~~ shall be ~~determined by multiplying the~~ subdivided into a greater number of shares of Common ~~Stock issuable upon conversion of such convertible securities by~~ Stock, the Conversion ~~Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase~~ Rate in effect at the ~~Current Market Price per share~~ opening of ~~Common Stock~~ business on the day following the day upon which such ~~record date. Such adjustment~~ subdivision becomes effective shall be ~~made successively whenever any such rights are issued~~proportionately increased, ~~and shall become effective immediately after such record date. To the extent that~~ and, conversely, in case outstanding shares of Common Stock ~~(or securities convertible~~ shall each be combined into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the a smaller number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock~~securities, cash or ~~evidences of Indebtedness or other~~ assets (~~including securities) of the Company (~~excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, warrants or options referred to in Section ~~4.06(a)(3~~12.04(b), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such and any dividend or distribution ~~date (as if each Holder had converted such Security into Common Stock immediately prior~~ referred to ~~the record date with respect to such distribution~~in Section 12.04(a)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted ~~so that the same shall equal the rate determined~~ by multiplying the Conversion Rate in effect immediately prior to ~~such record date by a fraction~~ the earlier of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution ~~is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in Section 12.04(g)) and the denominator shall be such current market price less the fair market value (as determined in good faith by the Board of ~~(A)~~ Directors, whose determination shall be conclusive and described in a Board Resolution), on the ~~average Closing Price~~ date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation PeriodStock, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day~~ day next following the later of (i) the date fixed for the payment of such distribution and (ii) the date 20 days after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect notice relating to such ~~distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed~~ distribution is given pursuant to ~~any rights plan that the Company implements after the~~ Section 12.06 (such later date of ~~this Indenture~~ (~~each a “Rights Plan”~~i) and (ii) being referred to as the "Reference Date")~~, in lieu of any adjustment required by any other provision~~ . The provisions of this Section ~~4.06~~ 12.04(d) shall not be applicable to ~~the extent~~ an event covered by Section 12.04(j). For purposes of this Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or distribution for which an adjustment is being made pursuant to this Section 12.04(d) that ~~such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the~~ also includes shares of Common Stock ~~issued upon conversion~~or rights, ~~the Rights described therein (whether~~ warrants or ~~not the Rights have separated from the Common Stock at the time of conversion), subject~~ options to ~~the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the~~ subscribe for or purchase shares of Common Stock ~~in accordance with the provisions~~ shall be deemed instead to be (A) a dividend or distribution of the ~~Rights Plan and the Holders would not be entitled to receive any rights in respect~~ evidences of ~~the~~ indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock ~~issuable upon conversion of the Securities as a result of the timing of the Conversion Date~~or such rights, ~~the~~ warrants or options (making any Conversion Rate ~~will be adjusted as if the Company distributed to all holders~~ adjustment required by this Section 12.04(d)) immediately followed by (B) a dividend or distribution of such shares of Common Stock ~~Distributed Securities~~ or such rights (making any further Conversion Rate adjustment required by Sections 12.04(a) or 12.04(b)), except (1) the record date of such dividend or distribution as ~~provided~~ defined in this Section 12.04(d) shall be substituted as "the ~~first paragraph~~ date fixed for the determination of ~~clause~~ stockholders entitled to receive such dividend or other distributions", "the date fixed for the determination of stockholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of Sections 12.04(a) and 12.04(b) and (42) 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 this ~~Section 4.06(a~~12.04(d), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6e) If In case the Company shall, by dividend or otherwise, ~~at any time distribute (~~make a ~~“Triggering Distribution”)~~ distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(e) has been made and (ii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a ~~payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation~~Board Resolution), ~~dissolution or winding up~~ as of the ~~Company~~expiration of the tender or exchange offer referred to below, ~~whether voluntary~~ of consideration payable in respect of any tender or ~~involuntary~~exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(e) has been made, exceeds 10% of the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock as of the Trading Day immediately preceding the record date fixed for stockholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such record date, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the ~~Expiration Date~~ date fixed for the determination of the stockholders of record entitled to such distribution by a fraction of which (i) the denominator shall be the current market price per share (determined as provided in Section 12.04(g)) on such date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the record date and (ii) the numerator shall be equal to the ~~sum~~ current market price on such date, such adjustment to become effective immediately prior to the opening of business on the day following the record date fixed for the payment of such distribution. (Af) In case a successful tender or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock shall involve an aggregate consideration having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that, together with (i) the ~~Fair Market Value~~ aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(f) has been made and (ii) the aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no Conversion Rate adjustment pursuant to Section 12.04(e) has been made, exceeds 10% of the product of the current market price per share (determined as provided in Section 12.04(d)) of the Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction of which (i) the denominator shall be (x) the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (y) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and (Bii) the numerator shall be 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~~x) ~~at the Expiration Time and the Closing Price~~ such current market price per share ~~of Common Stock~~ (determined in accordance with Section 12.04(g)) on the Trading Day next succeeding the Expiration ~~Date and the denominator of which shall be the product of the~~ Time times (y) such number of outstanding shares ~~of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company)~~ at the Expiration Time ~~multiplied by~~ less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time. (g) For the purpose of any computation under Sections 12.04(b), (d) and (e), the current market price per share of Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to the date in question; provided, however, that (i) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (ii) if the "ex" date for any Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.04(d) or (e), whose determination shall be conclusive and described in a Board Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to one share of Common Stock. For the purpose of any computation under Section 12.04(f), the current market price per share of ~~the~~ Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or exchange offer requiring such computation and (iii) the date of the last amendment, if any, of such tender or exchange offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Trading Day next succeeding the Expiration ~~Date~~Time of such tender or exchange offer (or, if such Expiration Time occurs before the close of trading on a Trading Day, not later than the Trading Day during which the Expiration Time occurs); provided, however, that if the "ex" date for any Other Event (other than the tender or exchange offer requiring such computation) occurs on or after the Commencement Date and on or prior to the Trading Day next succeeding the Expiration Time for the tender or exchange offer requiring such computation, the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such tender or exchange offer. (h) The Company may make such increases in the Conversion Rate, in addition to those required by paragraphs (a), (b), (c), (d), (e) and (f) of this Section 12.04, as it considers to be advisable. (i) No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate; provided, however, that any adjustments, which by reason of this Section 12.04(i) are not required to be made, shall be carried forward and taken into account in any subsequent adjustment. (j) In the event that the Company distributes assets, debt securities, rights, w

Appears in 2 contracts

Sources: Indenture (Interliant Inc), Indenture (Interliant Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be ~~adjusted~~ subject to adjustment, without duplication, from time to time by upon the ~~Company as follows~~occurrence of any of the following: (1i) If Stock Dividends in Common Stock. In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding~~ Common ~~Stock~~ Stock, payable exclusively in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to ~~such record date by a fraction of which~~ the ~~numerator shall be the sum of the number of shares of Common Stock outstanding at the close~~ opening of business on ~~such record~~ the ex-dividend date ~~plus the total number of shares of Common Stock constituting~~ for such dividend or other distribution ~~and~~ by an adjustment factor equal to a fraction: (A) the numerator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at immediately prior to the ~~close~~ opening of business on the ex-dividend date for such ~~record date. Such adjustment~~ dividend or other distribution; and (B) the denominator of which shall be ~~made successively whenever~~ 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 ex-dividend date for such dividend or other distribution. If, after any ~~such~~ record date fixed for determination, any dividend or distribution is ~~made and~~ not in fact paid, the Conversion Rate shall ~~become~~ be immediately readjusted, effective ~~immediately after~~ as of the date the Company’s Board of Directors determines not to pay such ~~record date~~dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the ~~purpose~~ purposes of this ~~Section 4.06 and otherwise in this Indenture~~clause (i), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 2 contracts

Sources: Indenture (Ciena Corp), Indenture (Ciena Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall (i) pay a dividend ~~or make a distribution to all holders of outstanding~~ on its Common Stock in shares of Common Stock, ~~the Conversion Rate~~ (ii) make a distribution on its Common Stock in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this IndentureStock, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2iii) ~~If the Company shall~~ subdivide its outstanding Common Stock into a greater number of shares, or (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have owned had such Security been converted immediately prior to the ~~day upon which~~ happening of such ~~subdivision or combination becomes~~ event. An adjustment made pursuant to this subsection (a) shall become effective ~~shall be,~~ immediately after the record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision dividend or ~~combination of the Common Stock occurs~~ distribution and shall become effective immediately after the effective date ~~upon which such~~ in the case of subdivision or ~~combination becomes effective~~combination. (3b) If In case the Company shall issue ~~any~~ rights or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its ~~outstanding~~ Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring ~~within 45~~ not more than 60 days after such ~~distribution~~record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the ~~Current Market~~ Closing Price per share of Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ Business Day immediately prior to the date ~~for the determination~~ of ~~stockholders entitled to receive~~ announcement of such ~~rights or warrants~~issuance, the Conversion Rate in effect ~~immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such ~~record date~~ announcement by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on ~~such record~~ the date of announcement plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) ), and the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on ~~such record~~ the date of announcement plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered ~~for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so ~~offered for subscription or purchase~~offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on the Business Day immediately preceding the date of announcement of such ~~record date~~issuance. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective on the day following the date of announcement of such issuance. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately ~~after such record date. To~~ readjusted to what it would have been based upon the ~~extent that~~ number of additional shares of Common Stock actually issued (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock issuable upon conversion of convertible securities actually ~~delivered. If such rights are not so~~ issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors). (4c) If In case the Company shall ~~make a dividend~~ distribute to all or ~~other distribution to~~ substantially all holders of its Common Stock of any shares of ~~its Capital Stock,~~ capital stock of the Company (other than Common Stock), or evidences of ~~Indebtedness~~ indebtedness or other non-cash assets (including ~~securities)~~ securities of any person other than the Company (but excluding (~~x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y~~1) dividends ~~and~~ or distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 14.06), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for ~~which an adjustment was made~~ or purchase any of its securities (excluding those rights and warrants referred to in subsection (b) of this Section 14.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to ~~Section 4.06(a)(6)~~a Rights Plan (as defined below) (or the ~~“Distributed Securities”~~detachment of such rights to the extent set forth in the second following paragraph), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by multiplying the current Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on ~~such~~ the record date mentioned below and ~~of which~~ the denominator shall be the Current Market Price per share of the Common Stock on such record date less the fair market value on such record date (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at on the ~~close of business on such~~ record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the ~~Distributed Securities~~ Capital Stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder~~ Holder of a Security shall have the right to receive upon conversion the amount of ~~Distributed Securities~~ Capital Stock, evidences of indebtedness or other non-cash assets so distributed ~~that~~ or of such rights or warrants such Holder would have received had such Holder converted each Security on such 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 which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4)~~ 14.06 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. ~~Notwithstanding~~ In the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, event that the Company ~~may~~ has in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any effect a preferred shares rights plan ~~that the Company implements after the date of this Indenture~~ (~~each a~~ “Rights Plan”), ~~in lieu~~ upon conversion of ~~any adjustment required by any other provision of this Section 4.06~~ the Securities into Common Stock, to the extent that ~~such~~ the Rights Plan is still in effect ~~at the time of any~~ upon such conversion, the Holders of Securities will receive, ~~with respect~~ in addition to the ~~shares of~~ Common ~~Stock issued upon conversion~~Stock, the ~~Rights~~ rights described therein (whether or not the ~~Rights~~ rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in ~~and in accordance with any such~~ the Rights Plan~~; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of~~ . If the Rights Plan ~~and~~ provides that upon separation of rights under such plan from the Company’s Common Stock that the Holders would not be entitled to receive any such rights in respect of the ~~shares of~~ Common Stock issuable upon conversion of the ~~Securities as a result of the timing of the Conversion Date~~Securities, the Conversion Rate will be adjusted as ~~if the Company distributed to all holders of Common Stock Distributed Securities as~~ provided in ~~the first paragraph of clause (4) of~~ this Section ~~4.06(a~~14.06(c) (with such separation deemed to be the distribution of such rights), subject to ~~appropriate~~ readjustment in the event of the expiration, ~~redemption,~~ termination or ~~repurchase~~ redemption of the ~~Rights~~rights. Any distribution of rights or warrants pursuant to a Rights Plan ~~complying with~~ that would allow a Holder to receive upon conversion, in addition to the ~~requirements set forth in~~ Common Stock, the ~~immediately preceding sentence~~ rights described therein (whether or not the rights have separated from the Common Stock at the time of ~~this paragraph~~ conversion), shall not constitute a distribution of rights or warrants pursuant to this ~~Section 4.06(a~~Article 14. 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)~~. Other than as~~ , 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 ~~this clause (5)~~ respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section ~~4.06(a), there will not be any~~ 14.06 (and no adjustment to the Conversion Rate under this Section 14.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this clause (c) of Section 14.06. 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 14.06 was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ 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 ~~issuance~~ date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any ~~Rights~~holders thereof, the ~~distribution of separate certificates representing~~ Conversion Rate shall be readjusted as if such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights~~rights and warrants had not been issued. (6d) If In case the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Common Stock ~~a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary)~~cash, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect on the Business Day immediately prior to the ~~close of business on the~~ record date ~~for such Triggering Distribution~~ (a the “Determination Date”) for such Triggering Distribution is declared by the Company by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be ~~such~~ the Current Market Price per share of the Common Stock on the Determination ~~Date~~ Date, and the denominator ~~of which~~ shall be the Current Market Price per share of the Common Stock on the Determination Date less the aggregate amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding ~~at the close of business~~ on the ~~Determination Date~~date such distribution is made), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. ~~If the amount of such~~ It is expressly understood that a stock buyback, repurchase or similar transaction or program shall in no event be considered a Triggering Distribution ~~is equal to~~ for purposes of this clause (d) or ~~greater than the Current Market Price per share~~ (e) of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declaredSection 14.06. (7e) ~~If any tender offer made by~~ In case the Company or any of its Subsidiaries ~~for all or~~ shall purchase any ~~portion~~ shares of the Company’s Common Stock ~~shall expire~~by means of a tender offer, then, if effective immediately prior to the ~~tender offer shall require the payment to stockholders~~ opening of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding~~ day after the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (Ax) ~~the Fair Market Value of~~ the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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 immediately prior to the Expiration Time and the ~~Closing~~ Current Market Price per share of Common Stock ~~on the Trading Day next succeeding the Expiration Date~~ (as determined in accordance with clause (f) of Section 14.06), and the denominator ~~of which~~ shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at immediately prior to the Expiration Time multiplied by the ~~Closing~~ Current Market Price per share of the Common Stock (as determined in accordance with clause (f) of Section 14.06). For purposes of this clause (e) of Section 14.06, the aggregate consideration in any such tender offer shall equal the sum of the aggregate amount of cash consideration and the aggregate fair market value (as 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) of any other consideration payable in such tender offer. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion 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 clause (e) of Section 14.06 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 14.06(e). For purposes of this clause (e) of Section 14.06, the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the 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. (f) For the purpose of any computation under clauses (b), (c) and (d) of Section 14.06, the current market price (the “Current Market Price”) per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices for the ten consecutive Trading Days commencing 11 Trading Days before the record date with respect to distributions, issuances or other events requiring such computation under Section 14.06. For purposes of any computation under subsection (e) of this Section 14.06, the Current Market Price per share of Common Stock shall be deemed to be the average of the daily Closing Prices for the ten consecutive Trading Days commencing on the Trading Day next succeeding the Expiration Date. (g) In any case in which this Section 14.06 shall require that an adjustment be made following a record date, ~~such i~~an announcement date or a Determination Date or Expiration Date, as the case may be, established for purposes of this Section 14.06, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 14.09) issu

Appears in 2 contracts

Sources: Indenture (Oscient Pharmaceuticals Corp), Indenture (Guardian II Acquisition CORP)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type 77 described in this ~~clause~~ Section 15.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on the record date~~ for the ~~determination of stockholders entitled to receive~~ 10 Trading Days immediately preceding the date such ~~rights or warrants~~distribution is first publicly announced by the Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days immediately preceding the date such ~~record date~~distribution is first publicly announced by the Company. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 stockholders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid ~~exclusively~~ in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~15.05(a) (any of the foregoing hereinafter in this Section 15.05(d)) (called the ~~“Distributed Securities”~~"DISTRIBUTED SECURITIES")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such Distributed Securities for distribution to the ~~Holders~~ Securityholders upon the conversion of the Securities on so that any such ~~dividend or distribution date (as~~ Securityholder converting Securities will receive upon such conversion, in addition to the shares of Common Stock to which such Securityholder is entitled, the amount and kind of such Distributed Securities which such Securityholder would have received if ~~each Holder~~ such Securityholder had converted ~~such Security~~ its Securities into Common Stock immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Distributed ~~Securities~~Securities 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 that if the then fair market value (as so determined) ~~on such record date~~ of the portion of the Distributed Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Securityholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Distributed Securities such ~~distribution~~Securityholder would have received had such Securityholder converted each Security on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences for such dividend or distribution on the ~~New York Stock Exchange, NASDAQ Global~~ Nasdaq National Market or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or quoted (~~such consecutive Trading Day period shall be defined as~~ the ~~“Spinoff Valuation Period”~~"EX-DIVIDEND DATE") ~~and~~ plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ fair market value of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff~~ Distributed Securities distributed in respect of ~~one~~ each share of Common Stock for which this Section 15.05(d) applies and shall equal the number of Distributed Securities distributed in respect of each share of Common Stock multiplied by the average of the closing sale prices of those Distributed Securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ PROVIDED that the Company may in lieu of 80 the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Securityholder shall have the right to receive upon conversion ~~thereof~~ the amount of Distributed Securities such ~~Spinoff Securities that such Holder of Securities~~ Securityholder would have received if had such ~~Securities had been~~ Securityholder converted each Security on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 15.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to Securityholders upon conversion by such Securityholders of Securities to Common Stock. 81 For purposes of this Section 15.05(d) and Section 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 15.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 15.05(a) and 15.05(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed "outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination" within the meaning of Section 15.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any ~~dividend or~~ cash distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the ~~close of business on~~ extent the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of aggregate cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to in any twelve month period does not exceed $0.01), then, in such ~~tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~case, the Conversion Rate shall be increased 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 Expiration Date~~ such record date by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of~~ Current Market Price on such record date; and (Aii) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the ~~product~~ Current Market Price on such record date less the amount of cash so distributed (including only the amount of cash distributed in excess of the ~~number~~ threshold set forth above) applicable to one share of ~~shares~~ Common Stock, such adjustment to be effective immediately prior to the opening of business on the day following the record date; PROVIDED that if the portion of the cash so distributed applicable to one share of Common Stock ~~outstanding (including Purchased Shares but excluding any shares held~~ is equal to or greater than the Current Market Price on the record date, in ~~the treasury~~ lieu of the ~~Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date~~foregoing adjustment, ~~such i~~adequate provision shall be made so that each Securit

Appears in 1 contract

Sources: Indenture (Andrew Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a ~~fraction~~ fraction, the denominator of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment~~ determination and the numerator of which shall be ~~made successively whenever any~~ the sum of such number of shares and the total number of shares constituting such dividend or ~~distribution is made and shall~~ other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 12.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase ~~shares of~~ Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~12.04(h)(ii)) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, the denominator 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 ~~record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible)~~ rights and ~~of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ishares

Appears in 1 contract

Sources: Indenture (Veritas Software Corp)

Appears in 1 contract

Sources: Indenture (Headwaters Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock or combination into a lesser number of shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be ~~increased~~ Adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the close of business on the Record Date for such ~~record date~~ dividend or other distribution or subdivision or combination 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 ~~such record date~~ the Record Date plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record Date, such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Rate shall again be adjusted increase to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the ~~date upon which~~ opening of business on the Record Date for such ~~subdivision or combination becomes effective~~determination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the Record Date fixed for such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share~~ of the Common ~~Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants~~Stock, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Record Date for such ~~record date~~ distribution 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 Record Date for such ~~record date~~ distribution plus the total number of additional shares of Common Stock offered for subscription or purchase or issuable pursuant to such rights or warrants, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record date for such ~~record date~~ distribution plus the ~~number of shares which~~ quotient obtained by dividing (x) the aggregate ~~offering~~ price payable to exercise such rights, by (y) the average of the ~~total number~~ Closing Sale Prices of ~~shares of~~ the Common Stock ~~so offered~~ for ~~subscription or purchase (or~~ the ~~aggregate conversion price of~~ 10 consecutive Trading Days immediately preceding the ~~convertible securities so offered~~ announcement date for ~~subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of~~ such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record datedistribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date for such ~~record date~~distribution. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record date~~ such Record Date for ~~the determination of stockholders entitled to receive~~ such ~~rights~~ distribution had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock,~~ Stock of the Company (other than Common ~~Stock,~~ Stock as covered by Section 15.04(a)) or evidences of ~~Indebtedness~~ its indebtedness, cash or other assets (including securities~~) of the Company (~~, but excluding ~~(x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y)~~ dividends and distributions ~~in connection with a reclassification~~covered by Section 15.04(b), ~~change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ Section 15.04(d) or ~~conveyance resulting in a change in the conversion consideration pursuant to~~ Section ~~4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6~~15.04(e)) (any of such shares of Capital Stock, indebtedness, cash or other property hereinafter in this Section 15.04(c)) called the “Distributed ~~Securities~~Property”)), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property 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 that if the then Fair Market Value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number~~ foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive, for each $1,000 principal amount of Notes upon conversion, the amount of Distributed Property such holder would have received had such holder owned an amount of shares of Common Stock ~~outstanding at~~ equal to the ~~close of business~~ Conversion Rate on ~~such record date)~~the Record Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company ~~(the “Spinoff Securities”)~~that are, or, when issued, will be, traded on a U.S. securities exchange, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of the Capital Stock or equity interest applicable to one share of Common Stock ~~over~~ for the 10 consecutive Trading ~~Day period~~ Days commencing on and including the ~~fifth~~ third Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Date plus (B) the ~~product of (i) the~~ average ~~Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by~~ Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date; and (ii) ~~the number of Spinoff Securities distributed in respect of one share of Common Stock and~~ the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that~~ day following such Record Date. Rights or warrants distributed by the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.04 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.04 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 15.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.04 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 15.04(c), Section 15.04(a), and Section 15.04(b), any dividend or distribution to which this Section 15.04(c) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 15.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants to which Section 15.04(b) applies (and any Conversion Rate adjustment required by this Section 15.04(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 15.04(a) and Section 15.04(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the Record Date”, “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 Section 15.04(a) and Section 15.04(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 15.04(a). (6d) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ exclusively cash to all holders of its Common Stock ~~a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary),~~ then the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on the ~~record date~~ Record Date for such ~~Triggering Distribution (a “Determination Date”)~~ dividend or distribution by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date less~~ such record date minus the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion of a Note (or any portion thereof) the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder converted each Security~~ holder owned a number of shares equal to the Conversion Rate on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. For the avoidance of doubt, for purposes of this Section 15.04(d), in the event of any reclassification of the Common Stock, as a result of which the Notes become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this Section 15.04(e), references in this Section to one share of Common Stock or to the Current Market Price or Closing Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Notes are then convertible equal to the numbers of shares of such class issued in respect of one share of Common Stock in such reclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications. (7e) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of cash and any other consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “Expiration ~~Date~~Time”) tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the ~~last time at which such tenders could have been made~~ Current Market Price of the Common Stock on the ~~Expiration Date is hereinafter sometimes called~~ Trading Day next preceding the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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~~Shares) at the Expiration Time and the ~~Closing~~ Current Market Price ~~per~~ of a share of Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including any Purchased ~~Shares but excluding any shares held in the treasury of the Company~~Shares) at the Expiration Time multiplied by the ~~Closing~~ Current Market Price ~~per~~ of a share of ~~the~~ Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date~~Time, such iadjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (f) For purposes of this Section 15.04 the term “Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, cont

Appears in 1 contract

Sources: Indenture (Lifepoint Hospitals, Inc.)

Adjustment of Conversion Rate. ~~(a) The~~ Each time that the Conversion Price is adjusted by the Issuer pursuant to this Section 14.4, the Conversion Rate shall be adjusted (rounded to the nearest one-ten thousandth) by multiplying the Conversion Rate by a fraction, the numerator of which is the Conversion Price immediately prior to such adjustment and the denominator of which is the Conversion Price as so adjusted. The Conversion Price shall be subject to adjustments, calculated by the Issuer, from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common ~~Stock~~ Shares in ~~shares of~~ Common ~~Stock~~Shares, the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be ~~increased so that the same shall equal the rate determined~~ reduced by multiplying ~~the~~ such Conversion ~~Rate in effect immediately prior to such record date~~ Price by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the ~~sum of the~~ number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the close of business on the Record Date (as defined in Section 14.4(g)) fixed for such ~~record date plus~~ determination, and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~distribution. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ reduction shall become effective immediately after ~~such record date. For~~ the ~~purpose~~ opening of ~~this Section 4.06 and otherwise in this Indenture,~~ business on the ~~number of shares of Common Stock at any time outstanding shall not include shares held in~~ day following the ~~treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 14.4(a) is declared but not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to the Conversion ~~Rate that~~ Price which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide its~~ outstanding Common ~~Stock~~ Shares shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ Common ~~Stock into a smaller number of shares~~Shares, the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately reduced, and conversely, in case outstanding Common Shares shall be combined into a smaller number of Common Shares, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 14.4(d)) to all holders of its outstanding Common ~~Stock~~ Shares entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common ~~Stock~~Shares) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~14.4(g)) on the ~~record date~~ Record Date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion ~~Rate in effect immediately prior thereto~~ Price shall be adjusted so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record date~~ Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and (ii) the denominator of which shall be the number of Common Shares outstanding on the close of business on the Record Date plus the total number of additional Common Shares so offered for subscription or ~~purchase,~~ purchase (or into which ~~shall be determined by multiplying~~ the ~~number of shares of Common Stock issuable upon conversion of such~~ convertible securities ~~by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date~~so offered are convertible). Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common ~~Stock~~Shares) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion ~~Rate~~ Price shall be readjusted to the Conversion ~~Rate that~~ Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common Shares) actually delivered. If In the event that such rights or warrants are not so issued, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate that~~ Price which would then be in effect if ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of shares of~~ such Common ~~Stock so offered~~Shares, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of ~~Directors~~Directors of the Issuer. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common ~~Stock~~ Shares any class of ~~shares of its~~ Capital ~~Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities)~~ Shares of the Company (other than any dividends or distributions to which Section 14.4(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (x1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.4(c), (y2) any stock, securities or other property or assets (including cash) distributed as dividends ~~and~~ or distributions in connection with a reclassification, change, ~~consolidation,~~ merger, combination, ~~liquidation~~sale, ~~dissolution~~conveyance, ~~winding up, sale~~ consolidation or ~~conveyance resulting in a change in the conversion consideration pursuant~~ statutory share exchange to which Section ~~4.10~~ 14.11 hereof applies and (z3) any ~~dividend~~ dividends or ~~distribution~~ distributions paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6))~~ cash, (the ~~“Distributed Securities”~~securities described in foregoing are hereinafter in this Section 14.4(d) called the "securities"), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes second paragraph of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”14.4(d), the Conversion ~~Rate~~ Price shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ reduced so that the same shall be equal to the ~~rate~~ price determined by multiplying the Conversion ~~Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing~~ Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the ~~record date for~~ Record Date (as defined in Section 14.4(g)) with respect to such ~~Triggering Distribution (a “Determination Date”)~~ distribution by a fraction, : (i) the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator~~ of which shall be the Current Market Price ~~per share~~ (determined as provided in Section 14.4(g)) on such date less the fair market value (as determined by the Board of Directors of the ~~Common Stock~~ Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer) on such date of the ~~Determination Date less~~ portion of the ~~amount of such Triggering Distribution~~ securities so distributed applicable to one ~~share of~~ Common ~~Stock~~ Share (determined on the basis of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding ~~at the close of business~~ on the ~~Determination~~ Record Date), and (ii) the denominator of which shall be such ~~increase to~~ Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the ~~date on which~~ Record Date. However, in the ~~Triggering Distribution is paid. If~~ event that the ~~amount~~ then fair market value (as so determined) of ~~such Triggering Distribution~~ the portion of the securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion of a Note (or any portion thereof) the amount of ~~cash so distributed that~~ securities such Holder would have received had such Holder converted ~~each Security on~~ such ~~Determination~~ Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate that~~ Price which would then be in effect if such ~~divided~~ dividend or distribution had not been declared.. If the Board of Directors of the Issuer determines the fair market value of any distribution for purposes of this Section 14.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 14.4(g) to the extent possible, unless the Board of Directors of the Issuer in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. For purposes of any calculation under this Section 14.4(d) in which the distribution consists of Capital Shares of one or more of the Company's Subsidiaries or other business units, if such Capital Shares are listed or quoted on the New York Stock Exchange or other national or regional exchange or market and Closing Prices are available during the relevant calculation period, the fair market value of such Capital Shares so listed or quoted shall be the average of the daily Closing Prices per share or unit of such Capital Shares for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the "ex" date (as defined in Section 14.4(g) hereof) with respect to the distribution requiring such computation. Rights or warrants distributed by the Company to all holders of Common Shares entitling the holders thereof to subscribe for or purchase the Company's Capital Shares (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a "Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 14.4(d) (and no adjustment to the Conversion Price under this Section 14.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 14.4(d): (4) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Shares with respect to such rights or warrant (assuming such holder had retained such rights or warrants), made to all holders of Common Shares as of the date of such redemption or repurchase, and (5) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 14.4(d) and Sections 14.4(a), 14.4(b) and 14.4(c), any dividend or distribution to which this Section 14.4(d) is applicable that also includes Common Shares, a subdivision or combination of Common Shares to which Section 14.4(c) applies, or rights or warrants to subscribe for or purchase Common Shares to which Section 14.4(c) applies (or any combination thereof), shall be deemed instead to be: (6) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such Common Shares, such subdivision or combination or such rights or warrants to which Sections 14.4(a), 14.4(b) and 14.4(c) apply, respectively (and any Conversion Price reduction required by this Section 14.4(d) with respect to such dividend or distribution shall then be made), immediately followed by (7) If a dividend or distribution of such Common Shares, such subdivision or combination or such rights or warrants (and any ~~tender offer made~~ further Conversion Price reduction required by Sections 14.4(a), 14.4(b) and 14.4(c) with respect to such dividend or distribution shall then be made), except: (A) the Record Date of such dividend or distribution shall be substituted as (x) "the date fixed for the determination of shareholders entitled to receive such dividend or other distribution," "Record Date fixed for such determinations" and "Record Date" within the meaning of Section 14.4(a), (y) "the day upon which such subdivision becomes effective" and "the day upon which such combination becomes effective" within the meaning of Section 14.4(b), and (z) as "the date fixed for the determination of shareholders entitled to receive such rights or warrants," "the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants" and such "Record Date" within the meaning of Section 14.4(c), and (B) any Common Shares 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 14.4(a) and any reduction or increase in the number of Common Shares resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (e) In case the Company shall, by dividend or ~~any~~ otherwise, distribute to all holders of its ~~Subsidiaries for all~~ Common Shares cash (excluding any cash that is distributed upon a reclassification, change, merger, combination, sale, conveyance, consolidation or ~~any portion~~ statutory share exchange to which Section 14.11 hereof applies or as part of ~~Common Stock shall expire~~a distribution referred to in Section 14.4(d) hereof), ~~then~~then and in each such case, if immediately after the ~~tender offer shall require the payment to stockholders~~ close of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to~~ Record Date of such ~~tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~distribution, the Conversion ~~Rate~~ Price shall be ~~increased~~ reduced so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion ~~Rate~~ Price in effect immediately prior to the close of business on ~~the Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum~~ Current Market Price on such Record Date less the full amount of such distribution, in each case, applicable to one Common Share, and (Aii) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be equal to the ~~product~~ Current Market Price on the Record Date. However, as determined by the Board of Directors of the ~~number~~ Issuer, whose determination shall be conclusive and set forth in a Board Resolution of ~~shares~~ the Issuer, the Issuer may in lieu of the foregoing adjustment, make adequate provision so that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of cash such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, adjustments to the Conversion Price resulting from the distribution of any quarterly cash dividends shall not cause the Conversion Rate to exceed 101.2146 Common Shares per $1,000 principal amount of Notes (the "Quarterly Dividend Cap"). Each time that the Conversion Rate is adjusted by the Issuer pursuant to this Section 14.4 for any reason other than the distribution of any quarterly cash dividends, the Quarterly Dividend Cap shall be adjusted (rounded to the nearest one-ten thousandth of a share) in the same manner as the Conversion Rate is adjusted pursuant to this Section 14.4. (f) In case a tender or exchange offer made by the Company or any of its subsidiaries to all holders of Common ~~Stock outstanding (including Purchased~~ Shares ~~but excluding~~ for all or any ~~shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share~~ portion of the Common ~~Stock on~~ Shares shall expire and such tender or exchange offer (as amended upon the ~~Trading Day next succeeding the Expiration Date, such i~~expirat

Appears in 1 contract

Sources: Indenture (Lions Gate Entertainment Corp /Cn/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock or combination into a lesser number of shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be ~~increased~~ Adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the close of business on the Record Date for such ~~record date~~ dividend or other distribution or subdivision or combination 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 ~~such record date~~ the Record Date plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record Date, such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Rate shall again be adjusted increase to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the ~~date upon which~~ opening of business on the Record Date for such ~~subdivision or combination becomes effective~~determination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the Record Date fixed for such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share~~ of the Common ~~Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants~~Stock, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Record Date for such ~~record date~~ distribution 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 Record Date for such ~~record date~~ distribution plus the total number of additional shares of Common Stock offered for subscription or purchase or issuable pursuant to such rights or warrants, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record date for such ~~record date~~ distribution plus the ~~number of shares which~~ quotient obtained by dividing (x) the aggregate ~~offering~~ price payable to exercise such rights, by (y) the average of the ~~total number~~ Closing Sale Prices of ~~shares of~~ the Common Stock ~~so offered~~ for ~~subscription or purchase (or~~ the ~~aggregate conversion price of~~ 10 consecutive Trading Days immediately preceding the ~~convertible securities so offered~~ announcement date for ~~subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of~~ such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record datedistribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date for such ~~record date~~distribution. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record date~~ such Record Date for ~~the determination of stockholders entitled to receive~~ such ~~rights~~ distribution had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock,~~ Stock of the Company (other than Common ~~Stock,~~ Stock as covered by Section 15.04(a)) or evidences of ~~Indebtedness~~ its indebtedness, cash or other assets (including securities~~) of the Company (~~, but excluding ~~(x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y)~~ dividends and distributions ~~in connection with a reclassification~~covered by Section 15.04(b), ~~change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ Section 15.04(d) or ~~conveyance resulting in a change in the conversion consideration pursuant to~~ Section ~~4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6~~15.04(e)) (any of such shares of Capital Stock, indebtedness, cash or other property hereinafter in this Section 15.04(c)) called the ~~“Distributed Securities”~~"DISTRIBUTED PROPERTY")), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property 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 that if the then Fair Market Value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number~~ foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive, for each $1,000 principal amount of Notes upon conversion, the amount of Distributed Property such holder would have received had such holder owned an amount of shares of Common Stock ~~outstanding at~~ equal to the ~~close of business~~ Conversion Rate on ~~such record date)~~the Record Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company ~~(the “Spinoff Securities”)~~that are, or, when issued, will be, traded on a U.S. securities exchange, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of the Capital Stock or equity interest applicable to one share of Common Stock ~~over~~ for the 10 consecutive Trading ~~Day period~~ Days commencing on and including the ~~fifth~~ third Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Date plus (B) the ~~product of (i) the~~ average ~~Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by~~ Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date; and (ii) ~~the number of Spinoff Securities distributed in respect of one share of Common Stock and~~ the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that~~ day following such Record Date. Rights or warrants distributed by the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.04 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.04 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 15.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.04 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 15.04(c), Section 15.04(a), and Section 15.04(b), any dividend or distribution to which this Section 15.04(c) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 15.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants to which Section 15.04(b) applies (and any Conversion Rate adjustment required by this Section 15.04(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 15.04(a) and Section 15.04(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the Record Date", "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 Section 15.04(a) and Section 15.04(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed "outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination" within the meaning of Section 15.04(a). (6d) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ exclusively cash to all holders of its Common Stock ~~a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary),~~ then the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on the ~~record date~~ Record Date for such ~~Triggering Distribution (a “Determination Date”)~~ dividend or distribution by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date less~~ such record date minus the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion of a Note (or any portion thereof) the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder converted each Security~~ holder owned a number of shares equal to the Conversion Rate on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. For the avoidance of doubt, for purposes of this Section 15.04(d), in the event of any reclassification of the Common Stock, as a result of which the Notes become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this Section 15.04(e), references in this Section to one share of Common Stock or to the Current Market Price or Closing Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Notes are then convertible equal to the numbers of shares of such class issued in respect of one share of Common Stock in such reclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications. (7e) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of cash and any other consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the ~~“Expiration Date”~~"EXPIRATION TIME") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the ~~last time at which such tenders could have been made~~ Current Market Price of the Common Stock on the ~~Expiration Date is hereinafter sometimes called~~ Trading Day next preceding the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the ~~“Purchased Shares”~~"PURCHASED SHARES") and (By) 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~~Shares) at the Expiration Time and the ~~Closing~~ Current Market Price ~~per~~ of a share of Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including any Purchased ~~Shares but excluding any shares held in the treasury of the Company~~Shares) at the Expiration Time multiplied by the ~~Closing~~ Current Market Price ~~per~~ of a share of ~~the~~ Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date~~Time, such iadjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (f) For purposes of this Section 15.04 the term "RECORD DATE" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, cont

Appears in 1 contract

Sources: Indenture (Lifepoint Hospitals, Inc.)

Appears in 1 contract

Sources: Indenture (On Semiconductor Corp)

Adjustment of Conversion Rate. ~~(a) The~~ Until the Securities have been paid in full or converted in full, the Conversion Rate shall be ~~adjusted~~ subject to adjustment from time to time ~~by the Company~~ as ~~follows:~~follows (but shall not be increased, other than pursuant to Section 9.7.1 hereof): ~~(1)~~ 9.7.1 If the Company shall ~~pay~~ at any time after the Issue Date effect a ~~dividend or make a distribution to all holders~~ stock split of the outstanding ~~Common Stock in shares of~~ Common Stock, the applicable Conversion Rate in effect immediately prior to the stock split shall be proportionately decreased. If the Company shall at any time or from time to time after the Issue Date, combine the outstanding shares of Common Stock, the applicable Conversion Rate in effect immediately prior to the combination shall be proportionately increased. Any adjustments under this Section shall be effective at the close of business on the date the stock split or combination occurs. 9.7.2 If the Company shall at any time or from time to time after the Issue Date make or issue or set a record date for the determination of ~~stockholders~~ holders of Common Stock entitled to receive ~~such~~ a dividend or other distribution ~~shall be increased so that~~ payable in shares of Common Stock, then, and in each event, the ~~same shall equal the rate determined by multiplying the~~ applicable Conversion Rate in effect immediately prior to such event shall be decreased as of the time of such issuance or, in the event such record date ~~by a fraction~~ shall have been fixed, as of ~~which the numerator shall be the sum of the number of shares of Common Stock outstanding at~~ the close of business on such record ~~date plus~~ date, by multiplying the applicable Conversion Rate then in effect by a fraction: (a) the numerator of which shall be the total number of shares of Common Stock ~~constituting~~ issued and outstanding immediately prior to the time of such ~~dividend~~ issuance or ~~other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at~~ the close of business on such record date~~. Such adjustment~~ ; and (b) the denominator of which shall be ~~made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For~~ the ~~purpose of this Section 4.06 and otherwise in this Indenture, the~~ total number of shares of Common Stock ~~at any time~~ issued and outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the ~~day upon which~~ time of such ~~subdivision~~ issuance or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares ~~which~~ of Common Stock issuable in payment of such dividend or distribution. 9.7.3 If the ~~aggregate offering price~~ Company shall at any time or from time to time after the Issue Date make or issue or set a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in other than shares of Common Stock, then, and in each event, an appropriate revision to the applicable Conversion Rate shall be made and provision shall be made (by adjustments of the ~~total~~ Conversion Rate or otherwise) so that the Holders shall receive upon conversions of their Securities, in addition to the number of shares of Common Stock receivable thereon, the number of securities of the Company or other issuer (as applicable) or other property that they would have received had the Securities been converted into Common Stock on the date of such event and had thereafter, during the period from the date of such event to and including the Conversion Date, retained such securities (together with any distributions payable thereon during such period) or assets, giving application to all adjustments called for during such period under this Section with respect to the rights of the Holder; provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Rate shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends or distributions. 9.7.4 If at any time or from time to time after the Issue Date there shall be a Change of Control, then as a part of such Change of Control the Holder shall have the right to demand prepayment pursuant to Section 5.15. 9.7.5 In the event the Company shall at any time or from time to time after the Issue Date issue or sell any additional shares of Common Stock (otherwise than as provided in the foregoing subsections or pursuant to Common Stock Equivalents (hereafter defined) granted or issued prior to the Issuance Date) (“Additional Shares of Common Stock”), at an effective price per share less than the Conversion Rate then in effect or without consideration, then the Conversion Rate upon each such issuance shall be reduced to a price equal to the consideration per share paid for such Additional Shares of Common Stock. For purposes of clarification, the amount of consideration received for such Additional Shares of Common Stock shall not include the value of any additional securities or other rights received in connection with such issuance of Additional Shares of Common Stock (i.e. warrants, rights of first refusal or other similar rights) 9.7.6 The provisions of this Section shall apply if (a) the Company, at any time after the Issue Date, shall issue any securities convertible into or exercisable or exchangeable for, directly or indirectly, Common Stock (“Convertible Securities”), other than the Securities, or (b) any rights or warrants or options to purchase any such Common Stock or Convertible Securities (collectively with the Convertible Securities the “Common Stock Equivalents”) shall be issued or sold. If the price per share for which Additional Shares of Common Stock may be issuable pursuant to any such Common Stock Equivalent shall be less than the applicable Conversion Rate then in effect, or if, after any such issuance of Common Stock Equivalents, the price per share for which Additional Shares of Common Stock may be issuable thereafter is amended or adjusted, and such price as so ~~offered~~ amended or adjusted shall be less than the applicable Conversion Rate in effect at the time of such amendment or adjustment, then the applicable Conversion Rate upon each such issuance or amendment or adjustment shall be adjusted as provided in subsection (ix) of this Section as if the maximum number of shares of Common Stock issuable upon conversion, exercise or exchange of such Common Stock Equivalents had been issued on the date of such issuance or amendment or adjustment. 9.7.7 In case any shares of Common Stock or any Common Stock Equivalents shall be issued or sold: (a) in connection with any merger or consolidation in which the Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed to or exchanged for ~~subscription~~ the stock or ~~purchase (or~~ other securities of another corporation), the amount of consideration therefor shall be, deemed to be the fair value, as determined reasonably and in good faith by the Board of Directors and approved by holders of at least two-thirds of the aggregate ~~conversion price~~ principal amount of then outstanding Securities, of such portion of the assets and business of the non-surviving corporation as such Board may determine to be attributable to such shares of Common Stock, convertible ~~securities so offered for subscription~~ securities, rights or ~~purchase~~warrants or options, as the case may be; or (b) in the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Company shall be ~~determined by multiplying~~ changed into or exchanged for the stock or other securities of another corporation, or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any corporation, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of the other corporation computed on the basis of the actual exchange ratio on which the transaction was predicated, and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation results in adjustment of the applicable Conversion Rate, or the number of shares of Common Stock issuable upon conversion of ~~such convertible securities by~~ the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rightsSecurities, the determination of the applicable 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 been made on the basis of delivery of only~~ or the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to ~~the close of business on the record date for~~ such ~~Triggering Distribution (a “Determination Date”) by a fraction~~merger, ~~the numerator of which~~ consolidation or sale, shall be made after giving effect to such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis adjustment of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share issuable upon conversion of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination DateSecurities. In the event ~~that such dividend~~ Common Stock is issued with other shares or ~~distribution is not so paid~~ securities or ~~made~~other assets of the Company for consideration which covers both, the ~~Conversion Rate~~ consideration computed as provided in this Section shall ~~again~~ be ~~adjusted to be~~ allocated among such securities and assets as determined in good faith by the ~~Conversion Rate that would~~ Board of Directors, and approved by holders of at least two-thirds of the aggregate principal amount of then ~~be in effect if such divided or distribution had not been declared~~outstanding Securities. ~~(7) If any tender offer made by~~ 9.7.8 In case the Company ~~or any~~ shall take record of the holders of its ~~Subsidiaries~~ Common Stock for ~~all~~ the purpose of entitling them to subscribe for or ~~any portion~~ purchase Common Stock or Convertible Securities, then the date of the issue or sale of the shares of Common Stock shall ~~expire, then, if~~ be deemed to be such record date. 9.7.9 Anything herein to the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)contrary notwithstanding, the ~~Conversion Rate~~ Company shall not be ~~increased so that the same shall equal the rate determined by multiplying~~ required to make any adjustment to the Conversion Rate in connection with any Permitted Financings. 9.7.10 The Company shall not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the Holder against impairment. In the event a Holder shall elect to convert any Securities as provided herein, the Company cannot refuse conversion based on any claim that such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, violation of an agreement to which such Holder is a party or for any reason whatsoever, unless, an injunction from a court, or notice, restraining and or adjoining conversion of all or of said Notes shall have issued and the Company posts a surety bond for the benefit of such Holder in an amount equal to one hundred fifty percent (150%) of the amount of the Securities the Holder has elected to convert, which bond shall remain in effect ~~immediately prior~~ until the completion of arbitration/litigation of the dispute and the proceeds of which shall be payable to such Holder (as liquidated damages) in the event it obtains judgment. 9.7.11 Upon occurrence of each adjustment or readjustment of the Conversion Rate or number of shares of Common Stock issuable upon conversion of the Securities pursuant to this Section, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the ~~close of business on~~ Holder a certificate setting forth such adjustment and readjustment, showing in detail the ~~Expiration Date by a fraction of~~ facts upon which ~~the numerator shall be the sum of (A) the Fair Market Value~~ such adjustment or readjustment is based. The Company shall, upon written request of the ~~aggregate consideration payable~~ Holder, at any time, furnish or cause to ~~stockholders based on~~ be furnished to the ~~acceptance (up to any maximum specified~~ Holder a like certificate setting forth such adjustments and readjustments, the applicable Conversion Rate in effect at the ~~terms of the tender offer) of all shares validly tendered~~ time, and ~~not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of~~ the number of shares of Common Stock ~~outstanding (less any Purchased Shares~~ and ~~excluding any shares held in~~ the ~~treasury~~ amount, if any, of other securities or property which at the time would be received upon the conversion of the ~~Company~~Securities. Notwithstanding the foregoing, the Company shall not be obligated to deliver a certificate unless such certificate would reflect an increase or decrease of at least one percent (1%) ~~at the Expiration Time~~ of such adjusted amount. 9.7.12 The Company shall pay any and ~~the Closing Price per share~~ all issue and other taxes, excluding federal, state or local income taxes, that may be payable in respect of ~~Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number~~ any issue or delivery of shares of Common Stock ~~outstanding (including Purchased Shares but excluding any shares held in the treasury~~ on conversion of the ~~Company) at~~ Securities pursuant thereto; provided, however, that the ~~Expiration Time~~ Company shall not be obligated to pay any transfer taxes resulting from any transfer requested by the Holder in connection with any such conversion. 9.7.13 No fractional shares of Common Stock shall be issued upon conversion of the Securities. In lieu of any fractional shares to which the Holder would otherwise be entitled, the Company shall pay cash equal to the product of such fraction multiplied by the ~~Closing Price per share~~ Daily VWAP of the of the Common Stock on for the five (5) consecutive Trading ~~Day next succeeding~~ Days immediately preceding the ~~Expiration~~ Conversion Date~~, such i~~.

Appears in 1 contract

Sources: Indenture (Genta Inc De/)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If~~ In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on its Common Stock exclusively in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be ~~increased~~ adjusted so that ~~the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by~~ a ~~fraction of which the numerator~~ Holder upon conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting~~ it would have been entitled to after such dividend or other distribution ~~and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any~~ if it had converted its Security immediately prior to such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 declaredother distribution. (2b) If In case the Company shall ~~subdivide~~ pay or make a dividend or other distribution on its ~~outstanding~~ Common Stock ~~into a greater number of shares~~consisting exclusively of, or ~~combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective~~ shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall otherwise issue ~~any rights~~ to all holders of its ~~outstanding~~ Common ~~Stock~~ Stock, rights, warrants or options entitling ~~them (~~the holders thereof, for a period ~~expiring within~~ not exceeding 45 ~~days after such distribution)~~ days, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in Section 12.04(g)) of the -------- Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ price of the total number of shares so offered would purchase at the current market price per share (determined as provided in Section 12.04(g)), such increase to become effective immediately -------- after the opening of business on the day following the date fixed for such determination. (c) In case outstanding shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which~~ shall be ~~determined by multiplying the~~ subdivided into a greater number of shares of Common ~~Stock issuable upon conversion of such convertible securities by~~ Stock, the Conversion ~~Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase~~ Rate in effect at the ~~Current Market Price per share~~ opening of ~~Common Stock~~ business on the day following the day upon which such ~~record date. Such adjustment~~ subdivision becomes effective shall be ~~made successively whenever any such rights are issued~~proportionately increased, ~~and shall become effective immediately after such record date. To the extent that~~ and, conversely, in case outstanding shares of Common Stock ~~(or securities convertible~~ shall each be combined into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the a smaller number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock~~securities, cash or ~~evidences of Indebtedness or other~~ assets (~~including securities) of the Company (~~excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, warrants or options referred to in Section ~~4.06(a)(3~~12.04(b), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or -------- distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such and any dividend or distribution ~~date (as if each Holder had converted such Security into Common Stock immediately prior~~ referred to in Section 12.04(a)), the ~~record date with respect to such distribution))~~ Conversion Rate shall be adjusted by multiplying -------- the Conversion Rate in effect immediately prior to the ~~record date fixed for the determination~~ earlier of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution ~~is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in Section 12.04(g)) and the denominator -------- shall be such current market price less the fair market value (as determined in good faith by the Board of ~~(A)~~ Directors, whose determination shall be conclusive and described in a Board Resolution), on the ~~average Closing Price~~ date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation PeriodStock, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day~~ day next following the later of (i) the date fixed for the payment of such distribution and (ii) the date 20 days after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect notice relating to such ~~distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed~~ distribution is given pursuant to ~~any rights plan that the Company implements after the~~ Section 12.06 (such later date of ~~this Indenture~~ (~~each a “Rights Plan”~~i) and (ii) being referred ----- to as the "Reference Date")~~, in lieu of any adjustment required by any other provision~~ . The provisions of this Section ~~4.06~~ 12.04(d) shall not -------- be applicable to ~~the extent~~ an event covered by Section 12.04(j). For purposes of this -------- Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or ------- ------- -------- distribution for which an adjustment is being made pursuant to this Section 12.04(d) that ~~such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the~~ also includes shares of Common Stock ~~issued upon conversion~~or rights, ~~the Rights described therein (whether~~ warrants or ~~not the Rights have separated from the Common Stock at the time of conversion), subject~~ -------- options to ~~the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the~~ subscribe for or purchase shares of Common Stock ~~in accordance with the provisions~~ shall be deemed instead to be (A) a dividend or distribution of the ~~Rights Plan and the Holders would not be entitled to receive any rights in respect~~ evidences of ~~the~~ indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock ~~issuable upon conversion of the Securities as a result of the timing of the Conversion Date~~or such rights, ~~the~~ warrants or options (making any Conversion Rate ~~will be adjusted as if the Company distributed to all holders~~ adjustment required by this Section 12.04(d)) immediately followed by (B) a -------- dividend or distribution of such shares of Common Stock ~~Distributed Securities as provided in the first paragraph of clause~~ or such rights (4making any further Conversion Rate adjustment required by Sections 12.04(a) ~~of this Section 4.06(a~~or -------- 12.04(b)), ~~subject to appropriate readjustment in~~ except (1) the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption record date of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution as -------- defined in ~~connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate~~ this Section 12.04(d) shall be ~~increased so that~~ substituted as "the ~~same~~ date fixed for the ------- determination of stockholders entitled to receive such dividend or other distributions", "the date fixed for the determination of stockholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of Sections 12.04(a) and 12.04(b) and (2) any -------- -------- shares of Common Stock included in such dividend or distribution shall ~~equal the rate determined by multiplying such Conversion Rate in effect immediately prior to~~ not be deemed "outstanding at the close of business on the ~~record~~ date fixed for such ~~Triggering Distribution~~ determination" within the meaning of this 12.04(b). -------- (~~a “Determination Date”~~e) ~~by a fraction,~~ the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount excess of such ~~Triggering Distribution applicable to one share of Common Stock~~ combined amount over such 10% and (~~determined on the basis of~~ y) the number of shares of Common Stock outstanding ~~at the close of business~~ on the ~~Determination Date)~~record date and (iii) the numerator of which shall be equal to the current market price on such date, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the record date ~~on which~~ fixed for the ~~Triggering Distribution is paid. If the amount~~ payment of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declareddistribution. (7f) ~~If any~~ In case a successful tender ~~offer~~ or exchange offer, other than an odd lot offer, made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if the tender offer shall require the payment to stockholders of~~ involve an aggregate consideration ~~per share of Common Stock~~ having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) ~~that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding~~ at the last ~~date~~ time (the “"Expiration ~~Date”~~Time") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that, together with (i) the ~~last time at~~ aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which ~~such tenders could have~~ no Conversion Rate adjustment pursuant to this Section 12.04(f) has been made and (ii) the -------- aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no Conversion Rate adjustment pursuant to Section 12.04(d) has been made, exceeds -------- 10% of the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock outstanding (including any tendered --------- shares) on the Expiration ~~Date is hereinafter sometimes called the “Expiration~~ Time”), the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying the Conversion Rate in effect immediately prior to the ~~close of business on the~~ Expiration ~~Date~~ Time by a fraction of which the ~~numerator~~ denominator shall be ~~the sum of~~ (Ai) the ~~Fair Market Value~~ product of the current market price per share (determined as provided in Section 12.04(g)) of --------- the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and ~~(B)~~ the numerator shall be 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~~i) ~~at the Expiration Time and the Closing Price~~ such current market price per share ~~of Common Stock~~ (determined in accordance with Section 12.04(g)) on the Trading Day next succeeding the Expiration ~~Date and the denominator of which shall be the product of the~~ Time --------- times (ii) such number of outstanding shares ~~of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company)~~ at the Expiration Time ~~multiplied by~~ less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time. (g) For the purpose of any computation under Sections 12.04(b), (d) -------- --- (e) and (f), the current market price per share of Common Stock on any date in --- question shall be deemed to be the average of the daily Closing Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to the date in question; provided, however, that (i) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after -------- --- --- --- --- --- the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (ii) if the "ex" date for any Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.04(c) -------- or (d), whose determination shall be conclusive and described in a Board --- Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to one share of Common Stock. For the purpose of any computation under Section 12.04(f), the current market price per share of ~~the~~ Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or exchange offer requiring such computation and (iii) the date of the last amendment, if any, of such tender or exchange offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Trading Day next succeeding the Expiration ~~Date~~Time of such tender or exchange offer (or, if such Expiration Time occurs before the close of trading on a Trading Day, not later than the Trading Day during which the Expiration Time occurs); provided, however, that if the "ex" date for any Other Event (other than the tender or exchange offer requiring such computation) occurs on or after the Commencement Date and on or prior to the Trading Day next succeeding the Expiration Time for the tender or exchange offer requiring such computation, the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such tender or exchange offer. (i) No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate; provided, however, that any adjustments, which by reason of this Section 12.04(i) are not required to be made, shall be carried forward and -------- taken into account in any subsequent adjustment. (j) In the event that the Company distributes assets, debt securities, rights, warrants or options (other than those referred to in Section 12.04(b) -------- above) pro rata to holders of Common Stock, and the fair market value of the portion of assets, debt securities, rights, warrants or options applicable to one share of Common Stock distributed to holders of Common Stock exceeds the Average Sale Price (as defined below) per share of Common Stock, or such Average Sale Price exceeds such fair market value by less than $1.00, then so long as any such assets, debt securities, rights, options or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Security upon conversion, rather than being entitled to an adjustment in the Conversion Rate, will be entitled to receive upon such conversion, in addition to the shares of Common Stock otherwise issuable upon conversion, the kind and amount of assets, debt securities, rights, warrants and options such Holder would have received had such Holder converted its Security immediately prior to the date of determination of the holders entitled to such distribution.

Appears in 1 contract

Sources: Indenture (Interliant Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution ~~to all holders of~~ on its outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~determination. Such ~~adjustment~~ an increase shall be successively made ~~successively~~ whenever any such payment of a dividend or distribution in shares of Common Stock on the Company’s outstanding Common Stock is ~~made~~ made, and each such increase shall become effective immediately after the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or ~~make any distribution on Common Stock held in the treasury of the Company~~other distribution. If any dividend or distribution of the type described in this ~~clause~~ Section 3.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase; and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the sum of 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 ~~record date~~ rights or warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including ~~securities)~~ capital stock of or similar equity interests in a Subsidiary or other business unit of the Company (or any other securities, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~3.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~3.05(a)) (any of the foregoing hereinafter in this Section 3.05(d) called the “~~Distributed~~ Securities”), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as which, in the case of Securities consisting in whole or in part of capital stock or similar equity interests, shall be determined ~~by reference to~~ based the Current Market Price of such Securities (replacing all references in the ~~Distributed~~ definition of Current Market Price to the Common Stock with references to such Securities), and which shall otherwise be determined by the Company’s Board of Directors, whose determination shall be conclusive, and which determination shall be described in a resolution of the Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~Holder would have received had such Holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~3.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Record Date. If the amount of any adjustment hereunder is not determinable as of the effective date of such adjustment, then a Holder converting Notes on and after such effective date and prior to the date such adjustment is determinable shall be entitled to receive the amount of shares of Common Stock of the Company determined by applying the Conversion Rate as in effect immediately prior to such effective date and an additional amount of shares of Common Stock~~. Notwithstanding the foregoing~~, if any, as shall result from the ~~securities~~ adjustment of such Conversion Rate. Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital~~ 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 of(such rights or warrants, “Rights”), shall be deemed not to have been distributed for purposes of this Section 3.05 (and no adjustment to the Conversion Rate under this Section 3.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such Rights 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 3.05(d). If any such Right, including any such existing Rights distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such Rights 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 (and a termination or expiration of the existing Rights without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of Rights, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 3.05 was made, (1) in the ~~“Spinoff Securities”)~~case of any such Rights that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ a holder or holders of Common Stock with respect to such Rights (assuming such holder had retained such Rights), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such Rights that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such Rights had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 3.05(d) in ~~effect~~ respect of Rights distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such Rights are actually distributed, or reserved by the Company for distribution to Holders of Notes upon conversion by such Holders of Notes to Common Stock. Holders shall be entitled to receive upon conversion of their Notes, in addition to the shares of Common Stock issuable upon conversion, the related Rights for the Common Stock pursuant to that certain Rights Agreement, dated as of June 1, 1997, between the Company and First Chicago Trust Company of New York, as amended by Amendment No. 1 to Rights Agreement dated February 17, 1999, or any replacement or successor plan thereto, subject to the generally applicable terms of such plan, and no additional adjustment to the Conversion Rate shall be made with respect to such Rights; provided that if a Trigger Event has occurred with respect to such Rights at the time of conversion of Notes, then Holders of such Notes shall not be entitled to receive such Rights upon conversion of their Notes but the Conversion Rate shall be adjusted as set forth in the foregoing paragraph (disregarding the last sentence thereof). For purposes of this Section 3.05(d) and Section 3.05(a) and (b), any dividend or distribution to which this Section 3.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this Section 3.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 3.05(a) and 3.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution”, ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ “the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such ~~distribution on~~ determination” within the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”meaning of Section 3.05(a) and 3.05(b) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed “outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination” within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 3.05(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such Holder would have received had such Holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of the number of shares ~~of Common Stock outstanding (less any Purchased Shares and excluding any shares held~~ to be accepted in the treasury of the Company) at the Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such isu

Appears in 1 contract

Sources: Fourth Supplemental Indenture (Providian Financial Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.06(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of shareholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on the record date~~ for the ~~determination of stockholders entitled to receive~~ 10 Trading Days immediately preceding the date such ~~rights or warrants~~distribution is first publicly announced by the Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days immediately preceding the date such ~~record date. Such~~ distribution is first publicly announced by the Company, such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.06(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~15.06(a) (any of the foregoing hereinafter in this Section 15.06(d) called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the cash and, if applicable, shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security into Common Stock~~ its Notes immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that, if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.06(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 on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Time plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ Fair Market Value of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock for which this Section 15.06(d) applies and shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the closing sale prices of those securities distributed (where such closing sale prices are available) for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.06 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.06(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 15.06 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 15.06(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes. For purposes of this Section 15.06(d) and Sections 15.06(a) and (b), any dividend or distribution to which this Section 15.06(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 ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 15.06(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.06(a) and 15.06(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution,” “the date fixed for the determination of shareholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Sections 15.06(a) and 15.06(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 15.06(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to expire and such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 1 contract

Sources: Indenture (Headwaters Inc)

Appears in 1 contract

Sources: Fourth Supplemental Indenture (Wyeth)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter while any of the Notes are outstanding pay a dividend or make a distribution to all holders of the outstanding ~~Common Stock~~ Ordinary Shares in ~~shares of Common Stock~~Ordinary Shares, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution by a ~~fraction~~ fraction, (i) the numerator 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 the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of ~~shares of Common Stock~~ Ordinary Shares constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~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 ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of ~~shares of Common Stock~~ Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company. The Company will not pay any dividend or make any distribution on ~~Common Stock~~ Ordinary Shares held in the treasury of the Company or by any wholly-owned Subsidiary of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If In case the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever hereafter while any ~~such subdivision or combination~~ of the ~~Common Stock occurs and shall become effective immediately after the date upon which such subdivision~~ Notes are outstanding issue rights or ~~combination becomes effective. (3) If the Company shall issue any rights~~ warrants to all holders of its outstanding ~~Common Stock~~ Ordinary Shares entitling them (for a period expiring within 45 forty-five (45) days after ~~such distribution) to subscribe~~ the date fixed for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants) to subscribe for or purchase Ordinary Shares at a price per share less than the average of the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the declaration date for such distribution, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such ~~record~~ declaration date by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of ~~shares~~ Ordinary Shares outstanding as of ~~Common Stock~~ the close of business on the date fixed for determination of shareholders entitled to receive such rights or warrants plus the total number of additional Ordinary Shares offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of Ordinary Shares outstanding at the close of business on the date fixed for determination of shareholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of ~~Common Stock on~~ the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the declaration date for such ~~record date. Such~~ distribution, such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that ~~shares of Common Stock (or securities convertible into Common Stock)~~ Ordinary Shares are not delivered after the expiration of such ~~rights~~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~~ Ordinary Shares actually delivered. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase ~~shares of Common Stock~~ Ordinary Shares at a price less than the ~~Current Market Price per share~~ average of ~~Common Stock~~ the Closing Sale Prices of the Ordinary Shares for the 10 Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of shares of Common Stock so offered~~such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding Ordinary Shares shall be subdivided into a greater number of Ordinary 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 Ordinary Shares shall be combined into a smaller number of Ordinary 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. In such case, the Conversion Rate shall be adjusted by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of Ordinary Shares outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of Ordinary Shares outstanding immediately prior to such subdivision or combination. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its ~~Common Stock~~ Ordinary Shares of ~~shares~~ any class of ~~its Capital Stock, other than Common Stock,~~ capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~15.05(a) (any of the foregoing hereinafter in this Section 15.05(d)) (called the ~~“Distributed~~ "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the Ordinary Shares to which such holder is entitled, the amount and kind of such Securities on that such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into ~~Common Stock~~ Ordinary Shares immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution)~~distribution of the Securities) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities so distributed applicable to one ~~share of Common Stock (determined on~~ Ordinary Share, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such ~~record date). Such adjustment~~ Record Date; provided that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one Ordinary Share is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its ~~Common Stock~~ Ordinary Shares consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of Common Stock over~~ the ~~10 consecutive~~ Ordinary Shares for the ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Time plus (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the ~~aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified~~ securities distributed in ~~the terms~~ respect of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of each Ordinary Share for which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ithis Section 15.05

Appears in 1 contract

Sources: Indenture (Amdocs LTD)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If In case the Company shall pay a dividend on its Common Stock in shares of Common Stock or make a distribution ~~to all holders of outstanding~~ on its Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator of shall be the sum of the number of shares of Common Stock outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture,~~ clause (1) of Subsection 4.06 (a) the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common ~~Stock~~ Shares held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If In case the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If In case the Company shall issue ~~any rights~~ rights, options or warrants to all holders of its ~~outstanding~~ Common Stock entitling them (for a period ~~expiring within 45~~ of not more than 60 days after such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) 10) of this ~~Section~~ Subsection 4.06(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such ~~rights~~ rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered ~~for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so ~~offered for subscription or purchase~~offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such ~~rights~~ rights, options or warrants are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such rights, options 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~~ rights, options or warrants been made on the basis of delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares actually delivered. If such ~~rights~~ rights, options 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 the record date for the determination of ~~stockholders~~ shareholders entitled to receive such ~~rights~~ rights, options or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such ~~rights~~ rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If In case the Company shall make a dividend or other distribution to all holders of its Common Stock of securities or other property (including evidences of indebtedness or other non-cash assets), including shares of ~~its Capital Stock, other than Common Stock,~~ capital stock or ~~evidences of Indebtedness or other assets (including securities) of the Company~~ similar equity instruments (excluding (x) any dividend or distribution of Common Stock for which an adjustment was made pursuant to Section 4.06(a)(1), any subdivision or combination of Common Stock for which an adjustment was made pursuant to Section 4.06(a)(2), any issuance of ~~rights~~ rights, options or warrants for which an adjustment was made pursuant to Section 4.06(a)(3), ) and (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section ~~4.06(a)(6~~4.06(a)(7)) (the “"Distributed Securities”"), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be ~~the~~ Current Market Price per share on such record date less the fair market value (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 In the event the then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed ~~that~~ such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this ~~Section~~ Subsection 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “"Spinoff Securities”"), the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 ten consecutive Trading Day period (the "Spinoff Valuation Period") commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences ~~for such distribution~~ on the ~~New York~~ Common Stock ~~Exchange,~~ on the NASDAQ ~~Global~~ National Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (B~~) the product of (i~~) the average Closing Price over the Spinoff Valuation Period of the portion of the Spinoff Securities ~~multiplied by (ii) the number of Spinoff Securities~~ so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to ~~make adequate provision~~ reserve the pro rata portion of such Spinoff Securities so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “"Rights”") that may be issued or distributed pursuant to the Company's existing rights plan and any rights plan that the Company implements after the date of this Indenture (each a “"Rights Plan”"), ~~in lieu~~ upon conversion of ~~any adjustment required by any other provision of this Section 4.06~~ the Securities into Common Stock, to the extent that such Rights Plan is in effect ~~at the time of any~~ upon such conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan ~~and the~~ so that Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this ~~Section~~ Subsection 4.06(a), subject to appropriate readjustment in the event of the expiration, ~~redemption,~~ termination or ~~repurchase~~ redemption of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this ~~Section~~ Subsection 4.06(a). Other than as specified in this clause (5) of this ~~Section~~ Subsection 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) Rights or warrants (other than Rights issued pursuant to a Rights Plan) 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 (each a "Trigger Event"): (A) are deemed to be transferred with such shares of Common Stock; (B) are not exercisable; and (C) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06 (and no adjustment to the Conversion Rate under this Section 4.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Subsection. 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 4.06 was made, (x) in the case of any such rights or warrants which shall all have been redeemed, purchased by the Company or purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption, purchase by the Company or purchase without exercise 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 purchase 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 purchase, and (y) in the case of such rights or warrants which 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. (7) In case the Company shall, by dividend or otherwise, at any time distribute (a “"Triggering Distribution”") to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), ) the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the ~~close of business~~ day on ~~the record date for~~ which such Triggering Distribution is declared (~~a “~~"Determination Date”") by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of ~~such Triggering Distribution~~ cash dividend or distribution, applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (~~7) If~~ 8) In case any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iComp

Appears in 1 contract

Sources: Indenture (Mgi Pharma Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments, calculated by the Guarantor, from time to time ~~by the Company~~ as follows: (1a) If In case the ~~Company~~ Guarantor shall hereafter pay a dividend or make a distribution in Ordinary Shares to all holders of ~~outstanding Common Stock in shares of Common Stock~~Ordinary Shares, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the sum of the number of Ordinary Shares outstanding at the close of business on the Record Date (as defined in Section 12.04(g)) fixed for such determination plus the total number of shares constituting such dividend or other distribution, and (ii) the denominator of ~~Common Stock~~ which shall be the number of Ordinary Shares outstanding at the close of business on such ~~record date plus the total number of shares of Common Stock constituting~~ Record Date fixed for such ~~dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~determination. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately after ~~such record date. For~~ the ~~purpose~~ opening of ~~this Section 4.06 and otherwise in this Indenture,~~ business on the ~~number of shares of Common Stock at any time outstanding shall not include shares held in~~ day following the ~~treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 12.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company~~ outstanding Ordinary Shares shall ~~subdivide its outstanding Common Stock~~ be subdivided or split into a greater number of ~~shares, or combine its outstanding Common Stock into a smaller number of shares~~Ordinary Shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the ~~date on~~ day upon which ~~the Triggering Distribution is paid. If the amount of~~ such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date~~subdivision becomes effective shall be proportionately increased, and conversely, in ~~lieu of the foregoing adjustment, adequate provision~~ case outstanding Ordinary Shares shall be ~~made so that each Holder~~ combined into a smaller number of ~~a Security shall have the right to receive upon conversion~~Ordinary Shares, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the ~~close~~ opening of business on the ~~Expiration Date by a fraction of~~ day following the day upon which ~~the numerator~~ such combination becomes effective shall be proportionately reduced, such increase or reduction, as the ~~sum~~ case may be, to become effective immediately after the opening of ~~(A) the Fair Market Value of the aggregate consideration payable to stockholders based~~ business on the ~~acceptance (up to any maximum specified in~~ day following the ~~terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted~~day upon which such subdivision, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such isplit or combination becomes effective.

Appears in 1 contract

Sources: Senior Indenture (M-Systems Flash Disk Pioneers LTD)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time ~~by the Company~~ as follows: (1a) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of its outstanding ~~Common Stock in shares of~~ Common Stock, then the Conversion Rate in effect immediately prior to the ~~record date~~ close of business on the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the sum of the total number of shares of Common Stock outstanding ~~at the close of business~~ on such ~~record date plus~~ Record Date and the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on such ~~record date~~Record Date. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide or split its outstanding shares of Common Stock into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect immediately prior to the opening of business on the day following the day upon which such subdivision or split becomes effective shall be proportionately increased, and, conversely, in case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately ~~after~~ prior to the ~~date~~ opening of business on the day following the day upon which such ~~subdivision~~ subdivision, split or combination becomes effective, so that the Holder of any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Note been converted immediately prior to the happening of such event adjusted as a result of such event. (3c) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price ~~per share (or having a Conversion Price per share) less than the Current Market Price~~ per share of Common Stock (~~as determined in accordance with clause (8)~~ or having a conversion, exchange or exercise price per share of ~~this Section 4.06(a)~~Common Stock) less than the Closing Sale Price of the Common Stock on the ~~record~~ Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the ~~determination~~ security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of ~~stockholders entitled to receive~~ or exchange or exercise for such ~~rights~~ security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or ~~warrants~~exercisable security), then the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record~~ date of announcement 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 ~~such record~~ the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the ~~convertible~~ convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the close of business on ~~such record~~ the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate ~~conversion~~ conversion, exchange or exercise price of the ~~convertible~~ convertible, exchangeable or exercisable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at such Closing Sale Price of the ~~Current Market Price per share of~~ Common ~~Stock on such record date~~Stock. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date for such ~~record date~~determination. To the extent that shares of Common Stock (or securities ~~convertible~~ convertible, exchangeable or exercisable into shares of Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. If 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~~ which would then be in effect if the ~~record date~~ Record 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current Market Price per share of Common Stock~~ such Closing Sale Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4A) If In case the Company ~~shall make a~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its ~~Capital Stock~~capital stock, ~~other than Common Stock, or~~ evidences of its Indebtedness or other ~~assets~~ assets, including securities (including ~~securities)~~ shares of capital stock of one or more of the ~~Company (~~Company's Subsidiaries), but excluding (xi) ~~any issuance~~ dividends or distributions of ~~rights for which an adjustment was made pursuant~~ Common Stock referred to in Section ~~4.06(a)(3~~12.3(a), (yii) any rights or warrants referred to in Section 12.3(c), (iii) dividends and distributions paid exclusively in cash referred to in Section 12.3(c) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with a the reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination~~, liquidation, dissolution, winding up~~, sale or conveyance ~~resulting~~ to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in ~~a change in~~ this Section 12.3(d) called the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”"DISTRIBUTED ASSETS"), ~~then~~ then, in each such ~~case~~ case, subject to paragraphs (~~unless the Company distributes such Distributed Securities for distribution to the Holders~~ D) and (E) of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 12.3(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the Current Market ~~Price per share of~~ Price; and (ii) the ~~Common Stock on such record date and~~ denominator of which ~~the denominator~~ shall be ~~the Current Market Price per share on~~ such ~~record date less the fair market value (as determined by reference to the~~ Current Market Price of the ~~Distributed Securities)~~ Common Stock, less the Fair Market Value on such ~~record~~ date of the portion of the ~~Distributed Securities~~ distributed assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at on the ~~close of business~~ Record Date) on such ~~record~~ date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the ~~record date~~ opening of business on the day following the Record Date for ~~the determination of stockholders entitled to receive~~ such distribution. 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~~ which would then be in effect if such dividend or distribution had not been declared~~. If the then Fair Market Value~~ . (~~as so determined~~B) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~12.3(d) by reference to the actual or when issued trading market for any ~~securities~~distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "REFERENCE PERIOD") used in computing the Current Market Price pursuant to Section 12.3(g) below to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the ~~Common Stock. Notwithstanding~~ Holders. (C) In the ~~foregoing~~event any such distribution consists of shares of capital stock of, if or similar equity interests in, one or more of the Company's Subsidiaries (a "SPIN-OFF"), the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities on the principal securities market on which such securities are traded for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Spin-Off, and the Current Market Price shall be measured for the same period. In the event, however, 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 mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock on the same Trading Day. (D) Rights or warrants distributed by the Company to all holders of ~~its~~ the outstanding shares of Common Stock ~~consist of Capital Stock of,~~ entitling them to subscribe for or ~~similar equity interests in, a Subsidiary or other business unit~~ purchase Equity Interests of the Company (either initially or under certain circumstances), which rights or warrants, until the ~~“Spinoff Securities”~~occurrence of a specified event or events ("TRIGGER EVENT"), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of Common Stock shall be deemed not to have been distributed for purposes of this Section 12.3(d) (and no adjustment to the Conversion Rate under this Section 12.3(d) shall be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different distributed assets, evidences of indebtedness or other assets, or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.3(d): (i) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of shares Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (ii) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. To the extent that the Company has a rights plan in effect upon the conversion of the Notes into Common Stock only or a combination of cash and Common Stock, with respect to the conversion consideration payable in Common Stock, a Holder will receive in addition to the Common Stock, the rights under the rights plan, unless the ~~Company makes an equivalent distribution~~ rights have separated from the Common Stock prior to the ~~Holders~~ time of ~~the Securities~~conversion, ~~so that the same shall be equal to the rate determined by multiplying~~ in which case the Conversion Rate will be adjusted at the time of separation as if the Company made a distribution referred to in this Section 12.3(d). To the extent that the Company has a rights plan in effect on upon conversion of the ~~record~~ Notes into cash, with respect to the conversion consideration payable in cash, a Holder will not receive any rights under the Rights Plan or other consideration in respect thereof. (E) For purposes of this Section 12.3(d) and Section 12.3(a), Section 12.3(b) and Section 12.3(c), any dividend or distribution to which this Section 12.3(d) is applicable that also includes (x) shares of Common Stock, (y) a subdivision, split or combination of shares of Common Stock to which Section 12.3(b) applies or (z) rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.3(c) applies (or any combination thereof), shall be deemed instead to be: (i) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision, split or combination or such rights or warrants to which Section 12.3(a), Section 12.3(b) and Section 12.3(c) apply, respectively (and any Conversion Rate adjustment required by this Section 12.3(d) with respect to such dividend or distribution shall then be made), immediately followed by (ii) a dividend or distribution of such shares of Common Stock, such subdivision, split or combination or such rights or warrants (and any further Conversion Rate increase required by Section 12.3(a), Section 12.3(b) and Section 12.3(c) with respect to such dividend or distribution shall then be made), except: (1) the Record Date of such dividend or distribution shall be substituted as (i) "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution," "Record Date fixed for such determinations" and "Record Date" within the meaning of Section 12.3(a), (ii) "the ~~numerator~~ day upon which such subdivision or split becomes effective" or "the day upon which such combination becomes effective" (as applicable) within the meaning of ~~which shall be~~ Section 12.3(b), and (iii) as "the ~~sum~~ Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and such "Record Date" within the meaning of Section 12.3(c); and (A2) any reduction or increase in the ~~average Closing Price~~ number of ~~one share~~ shares of Common Stock ~~over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for~~ resulting from such ~~distribution on the New York Stock Exchange~~subdivision, ~~NASDAQ Global Market~~ split or ~~such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted~~ combination (~~such consecutive Trading Day period~~ as applicable) shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed disregarded in ~~respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period,~~ connection with such ~~adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-~~dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such or distribution. (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of its outstanding shares of Common ~~Stock a payment consisting exclusively of~~ Stock, cash (~~excluding~~ including any ~~dividend or distribution~~ quarterly cash dividends) then, and in ~~connection with~~ each case, immediately after the ~~liquidation, dissolution or winding up~~ close of ~~the Company, whether voluntary or involuntary)~~business on such date, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iRate

Appears in 1 contract

Sources: Indenture (Cray Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustment from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall (1) pay a dividend ~~or make a distribution~~ in shares of Common Stock to all holders of ~~outstanding~~ Common Stock, (2) make a distribution in shares of Common Stock in to all holders of Common Stock, (3) subdivide the outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying the Conversion Rate in effect immediately prior to ~~such~~ close of business on the record date or effective date, as applicable, of such dividend, distribution, subdivision or combination by the number of shares of Common Stock that a person who owns only one share of Common Stock immediately before the record date or effective date, as applicable, of such dividend, distribution, subdivision or combination would own immediately after giving effect to such dividend, distribution, subdivision or combination (without giving effect to any arrangement pursuant to such dividend, distribution, subdivision or combination not to issue fractional shares of Common Stock). Any adjustment made pursuant to this SECTION 10.06(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) If the Company shall dividend or distribute rights or warrants to all holders of Common Stock, entitling them, for a period expiring not more than forty-five (45) days immediately following the record date for the determination of holders of Common Stock entitled to receive such rights or warrants, to subscribe for or purchase shares of Common Stock, at a price per share that is less than the Current Market Price per share of Common Stock on the declaration date for such dividend or distribution, then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such rights or warrants by a ~~fraction~~ fraction, the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date ~~upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (~~fixed for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be warrants plus the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which that the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the Current Market Price ~~per share~~ of the Common Stock on the Trading Day immediately preceding the declaration date for such ~~record date~~distribution. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To Notwithstanding the ~~extent~~ foregoing, the Company shall not be required to make an adjustment to the Conversion Rate pursuant to this SECTION 10.06(b) on account of a distribution of rights (whether by distribution of separate certificates representing such rights or otherwise) that ~~shares~~ are distributed pursuant to a stockholders' rights plan. In no event shall the Conversion Rate be decreased pursuant to this SECTION 10.06(b). (c) In case the Company shall dividend or distribute to all holders of Common Stock shares of Capital Stock of the Company (~~or securities convertible into~~ other than Common Stock~~) are not delivered after~~ ), evidences of indebtedness or other assets (other than dividends or distributions requiring an adjustment to the ~~expiration~~ Conversion Rate in accordance with SECTIONS 10.06(d)), or shall dividend or distribute to all holders of Common Stock rights or warrants to subscribe for or purchase securities of the Company (other than dividends or distributions of rights or warrants requiring an adjustment to the Conversion Rate in accordance with SECTION 10.06(b)), then in each such ~~rights,~~ case the Conversion Rate shall be ~~readjusted to~~ increased by multiplying the Conversion Rate ~~that would then be~~ in effect ~~had~~ immediately prior to the ~~adjustments made upon the issuance~~ close of ~~such rights been made~~ business on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share~~ of the Common Stock on such record date, and the denominator of which shall be the Current Market Price of the Common Stock on such record date ~~and of which the denominator shall be the Current Market Price per share on such record date~~ less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such~~ the record date of the portion of Capital Stock of the ~~Distributed Securities~~ Company, evidences of indebtedness, other assets, rights or warrants, as the case may be, so distributed applicable to one share of Common ~~Stock (determined on~~ Stock, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event ; provided 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 then Fair Market Value (as so determined) of the portion of Capital Stock of the ~~Distributed Securities~~ Company, evidences of indebtedness, other assets, rights or warrants, as the case may be, so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share of~~ on the ~~Common Stock on such~~ record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder of a Security~~ Holder shall have the right to receive ~~upon conversion~~ on the date of such dividend or distribution the amount of ~~Distributed Securities so distributed that~~ Capital Stock of the Company, evidences of indebtedness, other assets, rights or warrants, as the case may be, such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on ~~such~~ the record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this ~~Section 4.06(a)(4~~SECTION 10.06(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable record date. Any distribution of rights (whether by distribution of separate certificates representing such rights or otherwise) or warrants pursuant to a stockholders' rights plan complying with the ~~Common Stock~~requirements set forth in the preceding sentence of this paragraph and with SECTION 10.14 shall not constitute a distribution of rights or warrants pursuant to this SECTION 10.06(c). In no event shall the Conversion Rate be decreased pursuant to this SECTION 10.06(c). Notwithstanding the foregoing, if the ~~securities~~ Capital Stock distributed by the Company to all holders of its Common Stock ~~consist~~ consists of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (unless such Capital Stock or similar equity interests are distributed to the ~~“Spinoff Securities”~~Holders in such distribution as if such Holders had converted their Securities into Common Stock), the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date ~~fixed for the determination of stockholders entitled~~ with respect to ~~receive~~ such distribution by a fraction, the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the 10 ten (10) consecutive Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences for such distribution on the New York Stock Exchange, ~~NASDAQ Global Market~~ Nasdaq or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or quoted (~~such consecutive Trading Day period shall be defined as~~ the ~~“Spinoff Valuation Period”) and~~ "SPIN-OFF EX-DIVIDEND DATE"), plus (B) the ~~product of (i) the~~ average ~~Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ Closing Sale Prices of the ~~number of Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock for the ten (10) consecutive Trading Days commencing on and including the Spin-Off Ex-Dividend Date; and the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) consecutive Trading Days commencing on and including the Spin-Off Ex-Dividend Date, such adjustment to become effective immediately ~~prior to~~ after the opening of business on the ~~fifteenth~~ day following such record date; provided that if (x) the average of the Closing Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading commences; provided~~trading" commences for such dividend or distribution on the New York Stock Exchange, ~~however~~Nasdaq or such other national or regional exchange or market on which such securities are then listed or quoted, ~~that~~ minus (y) the ~~Company may~~ average of the Closing Prices of the securities distributed in respect of each share of Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the date on which "ex-dividend trading" commences for such dividend or distribution on the New York Stock Exchange, Nasdaq or such other national or regional exchange or market on which such securities are then listed or quoted is less than $1.00, then the adjustment provided by for by this paragraph shall not be made and in lieu thereof the provisions of the ~~foregoing~~ first paragraph of this SECTION 10.06(c) shall apply to such distribution. In any case in which this paragraph is applicable, SECTION 10.06(a), SECTION 10.06(b) and the first paragraph of this SECTION 10.06(c) shall not be applicable. For purposes of this SECTION 10.06(c) and SECTION 10.06(a) and SECTION 10.06(b), any dividend or distribution to which this SECTION 10.06(c) is applicable that also includes Common Stock, or rights or warrants to subscribe for or purchase 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 Common Stock or rights or warrants (and any Conversion Rate adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date required by this SECTION 10.06(c) with respect to such ~~distribution.~~ dividend or distribution shall then be made) immediately followed by (52) ~~With respect to any~~ a dividend or distribution of such Common Stock or such rights or warrants (~~the “Rights”) that may be issued or distributed pursuant to~~ and any ~~rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any~~ further Conversion Rate adjustment required by ~~any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive,~~ SECTION 10.06(a) and SECTION 10.06(b) with respect to ~~the shares of Common Stock issued upon conversion, the Rights described therein (whether~~ such dividend or ~~not the Rights have separated from the Common Stock at the time of conversion~~distribution shall then be made), ~~subject to~~ except the ~~limitations set forth in and in accordance with any~~ record date of such ~~Rights Plan; provided that if~~dividend or distribution shall be substituted as "the record date or effective date, at as applicable, of such dividend, distribution, subdivision or combination", "the ~~time~~ record date for the determination of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ entitled to receive such rights or warrants," "the record date in the ~~first paragraph~~ case of ~~clause (4) of this Section 4.06(a), subject to appropriate readjustment~~ a dividend or distribution" and "the effective date in the ~~event~~ case of a subdivision or combination" within the ~~expiration, redemption, termination or repurchase~~ meaning of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(aSECTION 10.06(a) and SECTION 10.06(b). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6d) If In case the Company shall, by dividend or otherwise, at any time ~~distribute (~~make a ~~“Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively~~ distribution of cash (excluding any cash that is distributed as part of a distribution requiring a Conversion Rate adjustment pursuant to SECTION 10.06(e) or any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company~~, whether voluntary or involuntary)~~) to all holders of Common Stock, the Conversion Rate shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on the record date for the determination of holders of Common Stock entitled to such ~~Triggering Distribution (a “Determination Date”)~~ distribution by a ~~fraction,~~ fraction the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date; and the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive ~~upon conversion,~~ on the date of such dividend or distribution the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on such ~~Determination Date~~record date. In ~~the~~ no event ~~that such dividend or distribution is not so paid or made,~~ shall the Conversion Rate ~~shall again~~ be ~~adjusted~~ decreased pursuant to ~~be the Conversion Rate that would then be in effect if such divided or distribution had not been declared~~this SECTION 10.06(d). (7e) If In case the Company or any Subsidiary of the Company shall distribute cash or other consideration in respect of a tender offer or exchange offer made by the Company or any Subsidiary of ~~its Subsidiaries~~ the Company for all or any portion of the Common Stock where the sum of the aggregate amount of such cash distributed and the aggregate Fair Market Value (as determined in good faith by the Board of Directors, whose determination shall ~~expire~~be conclusive and set forth in a Board Resolution), ~~then~~as of the Expiration Date (as defined below), if of such other consideration distributed (such sum, the ~~tender offer shall require the payment to stockholders of consideration~~ "AGGREGATE AMOUNT") expressed as an amount per share of Common Stock ~~having a Fair Market Value~~ validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (~~determined~~ as ~~provided~~ defined below) ~~that~~ (such tendered or exchanged shares of Common Stock, the "PURCHASED SHARES") exceeds the ~~Closing~~ Current Market Price per share of Common Stock on the Trading Day ~~next succeeding~~ immediately following the last date (such last date, the ~~“Expiration Date”~~"EXPIRATION DATE") on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as it the same may be ~~amended) (the last time at which such tenders could have been made on~~ amended through the Expiration ~~Date is hereinafter sometimes called the “Expiration Time”~~Date), then the Conversion Rate shall be increased ~~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 Expiration Date by a fraction ~~of which the~~ (A) whose numerator ~~shall be~~ is equal to the sum of (AI) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) Aggregate Amount and (BII) the product of (a) 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 Closing~~ Current Market Price per share of Common Stock on the Trading Day ~~next succeeding~~ immediately following the Expiration Date and ~~the denominator of which shall be the product of~~ (b) an amount equal to (i) the number of shares of Common Stock outstanding as of the last time (the "EXPIRATION TIME") at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (including all Purchased Shares) less (ii) the Purchased Shares ~~but excluding any~~ and (B) whose denominator is equal to the product of (I) the number of shares ~~held in the treasury~~ of ~~the Company) at~~ Common Stock outstanding as of the Expiration Time ~~multiplied by~~ (including all Purchased Shares) and (II) the ~~Closing~~ Current Market Price per share of ~~the~~ Common Stock on the Trading Day ~~next succeeding~~ immediately following the Expiration Date~~, such i~~.

Appears in 1 contract

Sources: Indenture (Toreador Resources Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the ~~Company~~ Corporation shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such ~~record~~ 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~determination 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 ~~adjustment shall be made successively whenever~~ increase 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 ~~made and~~ not in fact paid, the Conversion Rate shall ~~become~~ be immediately readjusted, effective ~~immediately after~~ as of the date the Board of Directors determines not to pay such ~~record date~~dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the ~~purpose~~ purposes of this ~~Section 4.06 and otherwise in this Indenture~~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~~ Corporation 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 clause 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 declaredCorporation. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior Subject to the ~~day upon which such subdivision or combination becomes effective shall be~~last sentence of paragraph (7) of this Section 16.04, in case the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company Corporation shall issue ~~any rights~~ rights, options or warrants to all holders of its ~~outstanding~~ Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share ~~of Common Stock~~ (determined as ~~determined~~ provided in ~~accordance with clause~~ paragraph (8) of this Section ~~4.06(a)~~16.04) of the Common Stock on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, options or ~~warrants~~warrants (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 ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such ~~record~~ date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator shall~~ will be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which~~ that the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible~~for subscription or purchase would purchase at such current market price and (ii) ~~and of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~purchase. Such increase 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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 Corporation but shall include shares issuable ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Corporation will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Corporation. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall ~~again~~ be ~~adjusted to~~ proportionately increased, and, conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate ~~that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination~~ 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 ~~stockholders entitled~~ business on the day following the day upon which such subdivision or combination becomes effective. (4) Subject to ~~receive such rights had not been fixed. In determining whether~~ the last sentence of paragraph (7) of this Section 16.04, in case the Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any ~~rights entitle the stockholders~~ class of capital stock or rights, options or warrants to subscribe for or purchase shares of ~~Common Stock at~~ 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 ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of~~ Convertible Security into shares of Common Stock ~~so offered, there shall be taken into account~~ without any ~~consideration received~~ action required by the ~~Company for such rights and~~ Corporation or 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. (4~~person) ~~If the Company shall make a dividend~~ or other ~~distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets~~ property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant~~ cash, other than those referred to ~~Section 4.06(a)(6)~~in paragraphs (5) and (~~the “Distributed Securities”)~~6) below, ~~then in each such case~~ (~~unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ iii) any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) any consideration distributed in any merger or consolidation to ~~the record date with respect to such distribution~~which Section 16.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, : (i) the numerator of which ~~shall~~ will be the ~~sum of~~ current market price per share (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted determined as provided in paragraph (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision 8) of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (416.04) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the ~~Determination Date and~~ date fixed for such determination less the ~~denominator~~ then fair market value (as determined by the Board of ~~which~~ Directors, whose determination shall be conclusive and described in a Board Resolution filed with the ~~Current Market Price per share~~ Trustee) of the ~~Common Stock on~~ portion of the ~~Determination Date less the amount~~ assets, shares or evidences of ~~such Triggering Distribution~~ indebtedness so distributed applicable to one share of Common Stock and (~~determined on~~ ii) the ~~basis~~ denominator shall be such current market price per share of the ~~number of shares of~~ Common ~~Stock outstanding at the close of business on the Determination Date), such increase to~~ Stock. Such adjustment will become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~determination of stockholders entitled to receive such distribution. If ~~the amount of~~ after any such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date~~date fixed for determination, ~~in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that~~ any such ~~Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date that the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding cash distributed upon a merger or consolidation to which Section 16.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-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 (5) or paragraph (6) of this Section 16.04 has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender offer ~~made~~ by the ~~Company~~ Corporation or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 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 16.04 has been made (the “combined cash and tender amount”) exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section 16.04) 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 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 shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 16.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 10% 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 16.04) of the Common Stock on such date fixed for determination. (6) In case a tender offer made by the Corporation or any Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if the~~ expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any non-cash consideration payable in respect of any other tender offer by the Corporation or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) or paragraph (5) of this Section 16.04 has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section 16.04 has been made (the “combined tender and cash amount”) exceeds 10% of the product of the current market price per share of the Common Stock ~~having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 16.04) ~~that exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “Expiration ~~Date~~Time”) tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the ~~last time at which~~ Expiration Time, then, and in each such ~~tenders could have been made~~ case immediately prior to the opening of business on the ~~Expiration Date is hereinafter sometimes called~~ day after the “date of the Expiration Time”), the Conversion Rate shall be ~~increased~~ 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 of the Expiration ~~Date~~ Time by a ~~fraction~~ fraction (i) the numerator of which ~~the numerator~~ shall be equal to (A) the ~~sum~~ product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 16.04) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered 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 ~~Fair Market Value~~ current market price per share of the ~~aggregate consideration payable to stockholders based~~ Common Stock (determined as provided in paragraph (8) of this Section 16.04) on the ~~acceptance (up to any maximum specified in the terms~~ date of the ~~tender offer~~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,~~ 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 16.11 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 16.04), and (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding any~~ 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 16.04). Rights, options or warrants issued by the Corporation to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares ~~held in the treasury~~ of capital stock of the ~~Company~~Corporation, which rights, options or warrants (i) at 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 shares of capital stock, in each case in clauses (i) through (iii) until the ~~Expiration Time multiplied by~~ occurrence of a specified event or events (“Trigger Event”), shall for purposes of this Section 16.04 not be deemed issued or distributed until the ~~Closing Price~~ occurrence of the earliest Trigger Event. (8) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this Section 16.04, the current market price per share of Common Stock on any date shall be calculated by the Corporation and be the average of the daily Closing Prices Per Share for the five consecutive Trading Days selected by the Corporation commencing not more than 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 ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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, ~~such i~~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 thi

Appears in 1 contract

Sources: Indenture (Baltimore Gas & Electric Co)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ adjusted, without duplication, from time to time by the Company ~~as follows~~in accordance with this Section 10.04: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such ~~record date~~ dividend or other distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (A) the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus (B) the total number of shares of Common Stock constituting ~~such~~ the dividend or ~~other distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 10.04 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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue rights, warrants or options (other than pursuant to any ~~rights~~ dividend reinvestment or share repurchase plans) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 60 days after the date of such distribution) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of ~~stockholders~~ shareholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights, warrants or options by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (A) the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ shareholders entitled to receive such ~~record date~~ rights or warrants plus (B) the total number of additional shares of Common Stock offered for subscription or purchase, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which is the ~~denominator shall be~~ sum of (A) the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ shareholders entitled to receive such ~~record date~~ rights or warrants plus (B) the total number of additional shares ~~which~~ of Common Stock that the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price ~~per share~~ of the Common Stock on such ~~record~~ date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If In the event that such rights or warrants are not so ~~issued~~exercised, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock, other than Common Stock,~~ Stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or other assets (including securities, but excluding any rights, options or warrants referred to in Section 10.04(b) ~~of the Company (~~and excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~10.04(a)) (any of the foregoing hereinafter in this Section 10.04(d) called the “Distributed ~~Securities~~Assets”), ~~then~~ then, in each such ~~case (unless~~ case, the ~~Company distributes such Distributed Securities for distribution~~ Conversion Rate shall be increased so that the same shall be equal to the ~~Holders~~ rate determined by multiplying the Conversion Rate in effect on the Ex-Dividend Date with respect to such distribution by a fraction, (i) the numerator of ~~Securities~~ which shall be the Current Market Price per share of the Common Stock on such Ex-Dividend 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 Ex-Dividend Date of the portion of the Distributed Assets so distributed in respect of one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Ex-Dividend 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 such Ex-Dividend Date or (2) the Current Market Price of Common Stock on the Ex-Dividend 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 Ex-Dividend Date for such distribution. In the event that such dividend or distribution ~~date (as~~ is not so paid or made, the Conversion Rate shall be adjusted to be the Conversion Rate that would then be in effect if ~~each Holder~~ such dividend or distribution had ~~converted~~ 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 ~~Security into~~ 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 ~~immediately~~ 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 shall 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. 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 Section 10.04(a) and (b), any dividend or distribution to 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 Section 10.04(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Ex-Dividend Date of such dividend or distribution shall be substituted as “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution,” “the date fixed for the determination of shareholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Section 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 which are or in connection with such distribution will be listed or quoted for trading on a U.S. national or regional securities exchange or The Nasdaq Global Select Market, the Conversion Rate in effect immediately ~~prior to~~ before the ~~record date~~ close of business on the Ex-Dividend Date fixed for ~~the~~ determination of ~~stockholders~~ 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 Last Reported 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 Nasdaq Global Select Market or such other national or regional exchange or market on which such securities are then listed or quoted plus (2) the average of the Closing Prices of the Common Stock over the same Trading Day period and (B) the denominator of which is such average of the Last Reported Sale Prices of the Common Stock for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on The Nasdaq Global Select Market or such other national or regional exchange or market on which the securities are then listed or quoted. (e) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (an “Extraordinary Cash Dividend”) (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be ~~adjusted~~ increased 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 Ex-Dividend Date for such ~~record date~~ Extraordinary Cash Dividend by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share~~ of the Common Stock on such ~~record date and~~ Ex-Dividend Date, and (ii) the denominator of which ~~the denominator~~ shall be ~~the Current Market Price per share on~~ such ~~record date less the fair market value (as determined by reference to the~~ Current Market Price of the ~~Distributed Securities)~~ Common Stock minus the amount per share of such dividend or the amount of cash so distributed applicable to one share of Common Stock, such adjustment to be effective immediately prior to the opening of business on the day following such ~~record date of~~ Ex-Dividend Date; provided, however, that in the event the portion of the ~~Distributed Securities~~ cash so distributed applicable to one share of Common Stock ~~(determined on~~ is equal to or greater than the ~~basis~~ Current Market Price of the ~~number of shares of~~ Common Stock ~~outstanding at the close of business~~ on such ~~record date). Such adjustment~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of cash such ~~distribution~~Holder would have received had such Holder converted each Security on such Ex-Dividend 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5f) ~~With respect to any rights~~ In case a tender (other than an odd-lot offer) or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “Expiration ~~Date~~Time”) tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Last Reported Sale Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration ~~Date~~Time, ~~such i~~the Conversion Rate shall be increased so tha

Appears in 1 contract

Sources: Indenture (School Specialty Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the 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 ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, (i) the numerator of which shall be ~~increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of~~ the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date plus~~ determination; and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this Section ~~4.06 and otherwise in this Indenture~~15.05(a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the number of ~~additional~~ shares that the aggregate offering price of ~~Common Stock offered (or into which~~ the ~~convertible securities~~ total number of shares so offered ~~are convertible~~would purchase at such Current Market Price, and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ stockholders entitled to receive such ~~record date~~ rights or warrants plus ~~the number of shares which the aggregate offering price of~~ the total number of additional shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so~~ offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4i) If 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 (ii) in case outstanding shares of Common Stock shall 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. Any such increase or reduction, as the case may be, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities, but excluding any rights or warrants referred to in Section 15.05(b) ~~of the Company (~~hereof, and excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~15.05(a) hereof (any of the foregoing hereinafter in this Section 15.05(d) called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date (as defined in Section 15.05(h)(iv) hereof for such ~~distribution~~distribution of the Securities)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall be equal to the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price per share of the Common Stock on such ~~record date~~ Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such ~~record date less~~ Record Date; provided, however, that in the ~~fair market value~~ event the then Fair Market Value (as ~~determined by reference to the Current Market Price of the Distributed Securities~~so determined) ~~on such record date~~ of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price of the Common Stock on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock of~~the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.05 (and no adjustment to the Conversion Rate under this Section 15.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 15.05 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 15.05(d) in ~~effect~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Sections 15.05(a) and 15.05(b) hereof, any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of 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 15.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) hereof with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution”, ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ “the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such ~~distribution on~~ determination” within the ~~New York Stock Exchange~~meaning of Sections 15.05(a) and 15.05(b) hereof, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed “outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination” within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 15.05(a) hereof. (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the ~~same~~ Conversion Rate shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the ~~close of business on the record date~~ Record Date for such ~~Triggering Distribution (a “Determination Date”)~~ dividend or distribution by a fraction, , (i) the numerator of which shall be ~~such Current Market Price per share~~ the average of the Closing Prices of the Common Stock for the three consecutive trading days ending on the ~~Determination~~ trading day immediately preceding the Record Date ~~and~~ for such dividend or distribution (the “Pre-Dividend Sale Price”), and (ii) the denominator of which shall be the ~~Current Market Price per share of~~ Pre-Dividend Sale Price, minus the ~~Common Stock on the Determination Date less the~~ full amount of such ~~Triggering Distribution~~ cash dividend or distribution applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to become effective ~~immediately prior~~ on the Business Day next following the Record Date for such dividend or distribution; provided that no adjustment to the ~~opening~~ Conversion Rate or the ability of ~~business~~ a holder of a Note to convert will be made pursuant to this Section 15.05(e) if the Company provides that holders of Notes will participate in such cash dividend or distribution on an as-converted basis without conversion; provided, further, that if the ~~day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share~~ denominator of the ~~Common Stock on the Determination Date~~foregoing fraction is less than $1.00 (including a negative amount), then in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ holder shall have the right to receive upon conversion, in addition to the Common Stock issuable upon such conversion, the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted ~~each Security on~~ its Note immediately prior to the Record Date for such ~~Determination Date~~dividend or distribution. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ihaving

Appears in 1 contract

Sources: Indenture (Kulicke & Soffa Industries Inc)

Adjustment of Conversion Rate. The number of shares of Common Stock and number and amount of any other securities and property as hereinafter provided into which each $25.00 principal amount of Securities is convertible (athe number of shares of Common Stock issuable at any time, giving effect to the last prior adjustment pursuant to this Section, if any, in exchange for $25.00 principal amount of Securities being hereinafter called the "conversion rate") ~~The Conversion Rate~~ shall be ~~adjusted~~ subject to adjustment from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on any class or series of ~~outstanding Common Stock~~ its capital stock in shares of Common Stock, the ~~Conversion Rate~~ conversion rate then in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the Conversion Rate in effect immediately prior to~~ such ~~record date~~ 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 ~~record date plus~~ determination and the total number of shares ~~of Common Stock~~ constituting such dividend or other distribution and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Rate shall again be adjusted increase to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the opening of business on the day following the date ~~upon which~~ fixed for such ~~subdivision or combination becomes effective~~determination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all or substantially all holders of its ~~outstanding~~ shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such rights or warrants, the ~~Conversion Rate~~ conversion rate then in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the Conversion Rate in effect immediately prior to~~ such ~~record date~~ 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 ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ of the subscription price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the Current Market Price per share of Common Stock on~~ such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair current market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)price, such increase to become effective immediately ~~prior to~~ after the opening of business on the day following the date ~~on which the Triggering Distribution is paid. If the amount of~~ fixed for such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Datedetermination. In the event that all of the shares of Common Stock subject to such ~~dividend~~ rights or ~~distribution is~~ warrants have not ~~so paid~~ been issued when such rights or ~~made~~warrants expire, then the ~~Conversion Rate~~ conversion rate shall ~~again~~ promptly be ~~adjusted~~ readjusted to be the ~~Conversion Rate that~~ conversion rate which would then be in effect if had the adjustment upon the issuance of such ~~divided~~ rights or ~~distribution had~~ warrants been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights or warrants. For the purposes of this paragraph (b), the number of shares of Common Stock at any time outstanding shall not ~~been declared~~include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. (7c) ~~If any tender offer made by~~ In case the ~~Company or any of its Subsidiaries for all or any portion~~ outstanding shares of Common Stock shall ~~expire~~be subdivided into a greater number of shares, ~~then~~the conversion rate then in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, ~~if the tender offer shall require the payment to stockholders of consideration per share~~ and, conversely, in case outstanding shares of Common Stock ~~having~~ shall each be combined into a ~~Fair Market Value~~ smaller number of shares, the conversion rate then 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. (~~determined as provided below~~d) ~~that exceeds~~ In case the ~~Closing Price per share~~ Company shall, by dividend or otherwise, distribute to all or substantially all holders of shares of Common Stock ~~on the Trading Day next succeeding the last date~~ evidences of indebtedness or assets (~~the “Expiration Date”~~including securities, but excluding any (i) ~~tenders could have been made pursuant~~ rights or warrants referred to ~~such tender offer~~ in paragraph (~~as it may be amended~~b) of this Section, (~~the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”~~ii) any dividend or distribution not prohibited by Section 1005 hereof and (iii) any dividend or distribution referred to in paragraph (a) of this Section), the ~~Conversion Rate~~ conversion rate shall be increased so that the same shall equal the rate determined by multiplying the ~~Conversion Rate~~ conversion rate then in effect immediately prior to the close of business on the ~~Expiration Date~~ day fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the ~~sum~~ current market price per share of Common Stock (Adetermined as provided in paragraph (f) of this Section) on the ~~Fair Market Value~~ date fixed for such determination and the denominator shall be such current market price per share of Common Stock less the then fair market value as determined by the Board of Directors of the ~~aggregate consideration payable~~ Company (whose determination shall be conclusive and described in a resolution of the Board of Directors) of the portion of the assets or evidences of indebtedness so distributed allocable to ~~stockholders based~~ one share of Common Stock, such adjustment to become effective immediately after the opening of business on the ~~acceptance~~ day following the date fixed for the determination of stockholders entitled to receive such distribution. (~~up to~~ e) In case the shares of Common Stock shall be changed into the same or a different number of shares of any ~~maximum specified~~ class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares or a stock dividend described in ~~the terms of the tender offer~~paragraph (a) or paragraph (c) of ~~all~~ this Section, or a consolidation, merger or sale of assets described in Section 1206), then and in each such event Holders of Securities shall have the right thereafter to convert such Securities into the kind and amount of shares ~~validly tendered~~ of stock and ~~not withdrawn as of the Expiration Time (the shares deemed so accepted~~other securities and property receivable upon such reorganization, ~~up to any such maximum~~reclassification or other change, ~~being referred to as the “Purchased Shares”) and (B) the product~~ by holders of the number of shares of Common Stock ~~outstanding~~ into which such Securities might have been converted immediately prior to such reorganization, reclassification or change. (~~less~~ f) For the purpose of any ~~Purchased Shares~~ computation under paragraphs (b) and ~~excluding any shares held in~~ (d) of this Section, the ~~treasury of the Company) at the Expiration Time and the Closing Price~~ current market price per share of ~~Common Stock~~ common stock on ~~the Trading Day next succeeding the Expiration Date and the denominator of which~~ any date shall be deemed to be the ~~product~~ average of the ~~number~~ daily Closing Prices for thirty (30) consecutive Trading Days commencing forty-five (45) days before the date in question. (g) No adjustment in the conversion rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (g)) would require an increase or decrease of at least 1% in such rate; provided, however, that the Company may make any such adjustment at its election; and provided, further, that any adjustments which by reason of this paragraph (g) 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. (h) The Company may, but shall not be required to, make such increases in the conversion rate, in addition to those required by paragraphs (a), (b), (c) and (d) of this Section, as the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock ~~outstanding~~ resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company's Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this Section and its actions in so doing shall be final and conclusive. (~~including Purchased Shares but excluding~~ i) Whenever the conversion rate is adjusted as herein provided: (i) the Company shall compute the adjusted conversion rate and shall prepare a certificate signed by the President and Chief Financial Officer of the Company setting forth the adjusted conversion rate and showing in reasonable detail the facts upon which such determination is based and the computation thereof, and such certificate shall forthwith be filed at each office or agency maintained for the purpose of conversion of Securities; and (ii) a notice stating that the conversion rate has been adjusted and setting forth the adjusted conversion rate shall as soon as practicable be mailed by the Company to all Holders of Securities at their last addresses as they shall appear on the Security Register and to the Trustee. (j) In the event that at any time, as a result of any adjustment made pursuant to this Article, the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares ~~held in the treasury~~ of the ~~Company) at~~ Company other than shares of Common Stock or to receive any other securities, the ~~Expiration Time multiplied by~~ number of such other shares or securities so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the ~~Closing Price per share of~~ provisions contained in this Article with respect to the Common ~~Stock on the Trading Day next succeeding the Expiration Date, such i~~Stock.

Appears in 1 contract

Sources: Indenture (Phoenix Duff & Phelps Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Base Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Base Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 11.11(a) is declared but not so paid or made, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on~~ for the ~~record~~ 10 Trading Days preceding the declaration date for ~~the determination of stockholders entitled to receive~~ such ~~rights or warrants~~distribution, the Base Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days preceding the declaration date for such ~~record date~~distribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~rights or warrants, the Base Conversion Rate shall be readjusted to the Base 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. If such rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate that would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Base 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 be combined into a smaller number of shares of Common Stock, the Base 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding (x) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~11.11(b), (y) ~~dividends and distributions~~ any dividend or distribution (I) paid exclusively in ~~connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ cash or ~~conveyance resulting~~ (II) referred to in ~~a change in the conversion consideration pursuant to~~ Section ~~4.10~~ 11.11(a) and (z) any ~~dividend or~~ distribution ~~paid exclusively~~ referred to in ~~cash for which an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~11.11(g)) (any of the “foregoing hereinafter in this Section 11.11(d) called the "Distributed Securities”")), ~~then~~ then, in each such ~~case (unless~~ case, the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Base Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Base Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed Securities so distributed applicable to one share of Common ~~Stock (determined on~~ Stock, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event Record Date; provided 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share of~~ on the ~~Common Stock on such record date~~Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder of a Security~~ Holder shall have the right to receive upon conversion the amount of Distributed Securities ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on the Record Date. If such ~~record date~~dividend or distribution is not so paid or made, the Base Conversion Rate shall again be adjusted to be the Base 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 ~~4.06(a)(4~~11.11(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 on the ~~Common Stock~~applicable Record Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist of Capital Stock of,~~ entitling the holders thereof to subscribe for or ~~similar equity interests in, a Subsidiary or other business unit~~ purchase shares of the ~~Company~~ Company's capital stock (~~the “Spinoff Securities”~~either initially or under certain circumstances), which rights or warrants, until the ~~Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders~~ occurrence of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction, the numerator of which shall be the sum of~~ specified event or events (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of "Trigger Event"): (i) ~~the average Closing Price over the Spinoff Valuation Period~~ are deemed to be transferred with such shares of ~~the Spinoff Securities multiplied by~~ Common Stock; (ii) ~~the number of Spinoff Securities distributed~~ are not exercisable; and (iii) are also issued in respect of ~~one share~~ future issuances of Common ~~Stock and the denominator of which~~ Stock, shall be ~~the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment~~ deemed not to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have ~~the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had~~ been ~~converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision~~ for purposes of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein 11.11 (~~whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in~~ and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any no adjustment to the Base Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iunder this

Appears in 1 contract

Sources: Indenture (Wells Fargo & Co/Mn)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on any class of ~~outstanding Common Stock~~ capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 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 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 12.4) of the Common Stock on the date fixed for the determination of shareholders 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 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (or the aggregate conversion price of the convertible securities so offered for subscription or~~ purchase, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall each be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If Subject to the last sentence of this paragraph (4), the last sentence of paragraph (7) of this Section and the provisions of Section 12.12, in case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock~~any class of capital stock, or ~~evidences of Indebtedness or~~ other ~~assets~~ property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) any merger or consolidation to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ 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 shareholders entitled to receive such ~~record date~~ 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) of this Section 12.4) of the Common Stock on the date fixed for such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ determination less the then fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the ~~Distributed Securities~~Trustee) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock ~~(determined on~~ and the ~~basis~~ denominator shall be such current market price per share of the ~~number of shares of~~ Common ~~Stock outstanding at~~ Stock, such adjustment to become effective immediately prior to the ~~close~~ opening of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the ~~record~~ day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this ~~Section 4.06(a)(4~~paragraph (4) by reference to the actual or when issued trading market for any ~~securities~~securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the ~~Current Market Price~~ current market price per share pursuant to paragraph (8) of this Section. In lieu of making the ~~Common Stock. Notwithstanding~~ foregoing adjustment, in the ~~foregoing, if the securities distributed by~~ event that the Company shall distribute rights or warrants relating to ~~all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit~~ securities of the Company (~~the “Spinoff Securities”)~~other than those referred to in paragraph (2) of this Section) ("Rights") pro rata to holders of Common Stock, the ~~Conversion Rate~~ Company shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make ~~adequate~~ proper provision so that each Holder of ~~Securities shall have the right to receive upon conversion thereof the amount of~~ a Security who converts such ~~Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on~~ Security (or any portion thereof) after the record date ~~with respect to~~ for such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 distribution and prior to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether expiration or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions redemption of the Rights ~~Plan and the Holders would not~~ shall be entitled to receive ~~any rights~~ upon such conversion, in ~~respect of~~ addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the ~~Securities as~~ date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a ~~result~~ holder of a number of shares of Common Stock equal to the ~~timing~~ number of Conversion Shares is entitled at the ~~Conversion~~ time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the ~~Conversion Rate will be adjusted as if~~ same number of Rights to which a holder of the ~~Company distributed to all holders~~ number of shares of Common Stock ~~Distributed Securities as provided in~~ into which the ~~first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event~~ principal amount of the ~~expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the~~ Security so converted was convertible immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment prior to the ~~Conversion Rate as~~ Distribution Date would have been entitled on the ~~result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights~~ Distribution Date in accordance with ~~any Rights Plan or~~ the ~~termination or invalidation~~ terms and provisions of ~~any~~ and applicable to the Rights. (65) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any ~~dividend~~ cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in ~~connection~~ paragraph (4) of this Section) in an aggregate amount (the "cash amount") that, combined together with (a) the ~~liquidation~~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 (5) has been made and (b) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, ~~dissolution~~ whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender offer by the Company or ~~winding up~~ any Subsidiary for all or any portion of the ~~Company~~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 (such cash amount and amounts in (a) and (b) combined, ~~whether voluntary or involuntary~~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 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 ~~increased~~ adjusted so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 ~~Expiration Date~~ date fixed for determination of the shareholders entitled to receive such distribution by a fraction (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ 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 ~~aggregate consideration payable~~ Common Stock on such date for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to ~~stockholders~~ shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration (the "consideration amount") 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 (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), as of the expiration of such tender offer, of any non-cash consideration paid in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (b) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (such consideration amount and amounts in (a) and (b) combined, 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 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 (11) the number of shares of Common Stock outstanding (including any tendered shares) at 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 12.41) 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,~~ 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 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 shareholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding any~~ 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 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 ~~held~~ 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 ~~treasury~~ occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 12.4 not be deemed issued until the occurrence of the ~~Company~~earliest Trigger Event. (8) For the purpose of any computation under paragraphs (2), (4), (5) at or (6) of this Section 12.4, the ~~Expiration Time multiplied by the Closing 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 daily Closing Prices for the five consecutive Trading Days selected by the Company commencing not more than 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 ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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, ~~such i~~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 C

Appears in 1 contract

Sources: Indenture (Uromed Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments, calculated by the Company, from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination and the total number of shares constituting such dividend or ~~distribution is made and~~ other distribution, and (ii) the denominator of which shall ~~become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture,~~ be the number of shares of Common Stock outstanding at ~~any time outstanding~~ the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such determination. Such increase shall ~~not include shares held in~~ become effective immediately after the ~~treasury~~ opening of business on the ~~Company. The Company will not pay any dividend or make any distribution on Common Stock held in~~ day following the ~~treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 12.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide its~~ outstanding shares of Common Stock shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company shall issue rights or warrants exercisable for no more than 45 days (other than any rights or warrants referred to in Section 12.4(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~12.4(g)) on the ~~record date~~ Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record date~~ Record Date by a ~~fraction~~ fraction: (i) the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible), and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If 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~~ which would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness or other assets (including securities)~~ capital stock of the Company (other than any dividends or distributions to which Section 12.4(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (x1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~12.4(c), (y2) ~~dividends and distributions~~ any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination~~, liquidation, dissolution, winding up~~, sale or conveyance ~~resulting in a change in the conversion consideration pursuant~~ to which Section ~~4.10~~ 12.11 hereof applies and (z3) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant to Section 4.06(a)(6))~~ (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 12.4(d) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ second succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 12.4(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ (determined as provided in Section 12.4(g)) on such ~~record date and~~ date, and (ii) the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price ~~per share~~ on such ~~record~~ date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors (except as described below), whose determination shall be conclusive and set forth in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at on the ~~close of business on such record date~~Record Date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the ~~record date for~~ opening of business on the ~~determination~~ day following the Record Date, or in the case of ~~stockholders entitled~~ a Spin-off, immediately prior to ~~receive such distribution~~the opening of business on the day following the last Trading Day of the Measurement Period. In However, 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the ~~Distributed Securities~~ securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash ~~so distributed that~~ or other assets, including securities, such Holder would have received had such Holder converted ~~each~~ such Security on (or portion thereof) immediately prior to such ~~Determination~~ 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~~ which would then be in effect if such ~~divided~~ dividend or distribution had not been declared.. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 12.4(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. In the event the Company distributes shares of capital stock of a Subsidiary or other business unit of the Company, the Conversion Rate will be adjusted, if at all, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such distribution by a fraction: (7iii) ~~If any tender offer made~~ the numerator of which shall be the Current Market Price (determined as described below) on such date plus the fair market value on such date of the portion of the shares of capital stock of such Subsidiary or other business unit of the Company so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and (iv) the denominator of which shall be such Current Market Price on such date (determined as described below). 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 ten (10) consecutive Trading Days commencing on and including the fifth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”) and the Current Market Price shall be calculated over the same Measurement Period; provided, however, 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 for the Common Stock on the same Trading Day. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or ~~any~~ purchase shares of ~~its Subsidiaries for all~~ the Company’s capital stock (either initially or ~~any portion~~ under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (v) are deemed to be transferred with such shares of Common Stock, (vi) are not exercisable, and (vii) are also issued in respect of future issuances of Common Stock shall ~~expire~~be deemed not to have been distributed for purposes of this Section 12.4(d) (and no adjustment to the Conversion Rate under this Section 12.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, ~~then~~upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, if evidences of indebtedness or other assets or entitle the ~~tender offer~~ holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall ~~require~~ be deemed to be the ~~payment~~ date of issuance and record date with respect to ~~stockholders~~ a new right or warrant (and a termination or expiration of ~~consideration~~ the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.4(d): (1) in the case of any such rights or warrants which shall all have been repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final 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 repurchase price received by a holder of Common Stock ~~having a Fair Market Value~~ with respect to such rights or warrant (~~determined as provided below) that exceeds the Closing Price per share~~ assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which this Section 12.4(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.4(c) applies (or any combination thereof), shall be deemed instead to be: (3) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and any Conversion Rate increase required by this Section 12.4(d) with respect to such dividend or distribution shall then be made), immediately followed by (4) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or distribution shall then be made), except: (A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determination” and “Record Date” within the meaning of Section 12.4(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12.4(b), and (z) “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “Record Date,” “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such date fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 12.4(c), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the ~~Trading Day next succeeding~~ Record Date fixed for such determination” within the ~~last date~~ meaning of Section 12.4(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (e) In case the ~~“Expiration Date”~~Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies or as part of a distribution referred to in Section 12.4(d) ~~tenders could have been made pursuant to~~ hereof), then and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date, the Conversion Rate shall be increased 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 Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum of (A) the Fair~~ Current Market ~~Value of the aggregate consideration payable to stockholders based~~ Price on the ~~acceptance~~ Record Date, and (~~up to any maximum specified in the terms of the tender offer~~ii) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be equal to the ~~product~~ Current Market Price on such date less an amount equal to the quotient of ~~the number of shares of Common Stock outstanding~~ (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ix

Appears in 1 contract

Sources: Indenture (Cyberonics Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments, calculated by the Company, from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination and the total number of shares constituting such dividend or ~~distribution is made and~~ other distribution, and (ii) the denominator of which shall ~~become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture,~~ be the number of shares of Common Stock outstanding at ~~any time outstanding~~ the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such determination. Such increase shall ~~not include shares held in~~ become effective immediately after the ~~treasury~~ opening of business on the ~~Company. The Company will not pay any dividend or make any distribution on Common Stock held in~~ day following the ~~treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 12.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide its~~ outstanding shares of Common Stock shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 12.4(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~12.4(g)) on the ~~record date~~ Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record date~~ Record Date by a ~~fraction~~ fraction: (i) the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible), and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If 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~~ which would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness or other assets (including securities)~~ capital stock of the Company (other than any dividends or distributions to which Section 12.4(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (x1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~12.4(c), (y2) ~~dividends and distributions~~ any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination~~, liquidation, dissolution, winding up~~, sale or conveyance ~~resulting in a change in the conversion consideration pursuant~~ to which Section ~~4.10~~ 12.11 hereof applies and (z3) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant to Section 4.06(a)(6))~~ (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 12.4(d) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ second succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 12.4(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ (determined as provided in Section 12.4(g)) on such ~~record date and~~ date, and (ii) the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price ~~per share~~ on such ~~record~~ date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors (except as described below), whose determination shall be conclusive and set forth in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at on the ~~close of business on such record date~~Record Date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the ~~record date for~~ opening of business on the ~~determination~~ day following the Record Date, or in the case of ~~stockholders entitled~~ a Spin-off, immediately prior to ~~receive such distribution~~the opening of business on the day following the last Trading Day of the Measurement Period. In However, 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the ~~Distributed Securities~~ securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash ~~so distributed that~~ or other assets, including securities, such Holder would have received had such Holder converted ~~each~~ such Security on (or portion thereof) immediately prior to such ~~Determination~~ 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~~ which would then be in effect if such ~~divided~~ dividend or distribution had not been declared. . If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (7the “Reference Period”) ~~If any tender offer made~~ used in computing the Current Market Price pursuant to Section 12.4(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. In the event the Company distributes shares of capital stock of a Subsidiary or other business unit of the Company, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary or other business unit of the Company’s stock so distributed relative to the market value of the Common Stock, as described in the remainder of this paragraph. 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 ten (10) consecutive Trading Days commencing on and including the fifth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”); provided, however, 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 for the Common Stock on the same Trading Day. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or ~~any~~ purchase shares of ~~its Subsidiaries for all~~ the Company’s capital stock (either initially or ~~any portion~~ 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 ~~expire~~be deemed not to have been distributed for purposes of this Section 12.4(d) (and no adjustment to the Conversion Rate under this Section 12.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, ~~then~~upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, if evidences of indebtedness or other assets or entitle the ~~tender offer~~ holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall ~~require~~ be deemed to be the ~~payment~~ date of issuance and record date with respect to ~~stockholders~~ a new right or warrant (and a termination or expiration of ~~consideration~~ the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.4(d): (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 of Common Stock ~~having a Fair Market Value~~ with respect to such rights or warrant (~~determined as provided below) that exceeds the Closing Price per share~~ assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which this Section 12.4(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.4(c) applies (or any combination thereof), shall be deemed instead to be: (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and any Conversion Rate increase required by this Section 12.4(d) with respect to such dividend or distribution shall then be made), immediately followed by (2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or distribution shall then be made), except: (A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determination” and “Record Date” within the meaning of Section 12.4(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12.4(b), and (z) “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “Record Date,” “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such date fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 12.4(c), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the ~~Trading Day next succeeding~~ Record Date fixed for such determination” within the ~~last date~~ meaning of Section 12.4(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (e) In case the ~~“Expiration Date”~~Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies or as part of a distribution referred to in Section 12.4(d) ~~tenders could have been made pursuant to~~ hereof), then and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date, the Conversion Rate shall be increased so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on ~~the Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the Current Market Price on the Record Date, and (ii) the denominator of which shall be equal to the Current Market Price on such date less an amount equal to the quotient of (x) the sum of ~~(A) the Fair Market Value of~~ the aggregate ~~consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms~~ amount of ~~the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed~~ cash so ~~accepted, up to any such maximum, being referred to as the “Purchased Shares”)~~ distributed and (By) ~~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 Closing Price per share of Common Stock~~ on the ~~Trading Day next succeeding~~ Record Date. In the ~~Expiration Date and~~ event that such dividend or distribution is not so paid or made, the ~~denominator of which~~ Conversion Rate shall again be adjusted to be the ~~product of the number of shares of Common Stock outstanding~~ Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (~~including Purchased Shares but excluding any shares held in the treasury of the Company~~f) ~~at the Expiration Time multiplied~~ In case a tender or exchange offer made by the ~~Closing Price per share~~ Company or any of its subsidiaries for all or any portion of the Common Stock shall expire, then, and in each such case, immediately prior to the opening of business on the ~~Trading Day next succeeding~~ day after the ~~Expiration Date, such i~~date of the last time (t

Appears in 1 contract

Sources: Indenture (Cv Therapeutics Inc)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted~~ In case the Trust shall, at any time or from time to time by after the ~~Company~~ Original Issue Date while any of the Series C Preferred Shares are outstanding, issue Common Stock as ~~follows: (1) If the Company shall pay~~ a dividend or ~~make a distribution~~ distributions to all or substantially all holders ~~of outstanding Common Stock in shares~~ of Common Stock, then the Conversion Rate in effect immediately prior to the ~~record date~~ close of business on the Record Date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a ~~fraction~~ fraction: (1) the numerator of which ~~the numerator~~ shall be the sum of the total number of shares of Common Stock and OP Units outstanding at the close of business on such ~~record date plus~~ Record Date and the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (2) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock and OP Units outstanding at the close of business on such ~~record date~~Record Date. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section (d)(7)(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide~~ Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, subdivide, reclassify or split its outstanding shares of Common Stock into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect immediately prior to the opening of business on the day following the day upon which such ~~subdivision~~ subdivision, reclassification or ~~combination~~ split becomes effective shall bebe proportionately increased, and, conversely, in case the ~~case~~ Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, combine or reclassify its outstanding shares of Common Stock into a ~~subdivision~~ smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to the opening of business on the day following the day upon which such combination or reclassification becomes effective shall be proportionately ~~increased and~~reduced, in such increase or reduction, as the case ~~of a combination of Common Stock~~may be, ~~proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall~~ to become effective immediately ~~after~~ prior to the ~~date~~ opening of business on the day following the day upon which such ~~subdivision~~ subdivision, reclassification, split or combination becomes effective, so that the holder of any Series C Preferred Share thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Series C Preferred Share been converted immediately prior to the happening of such event adjusted as a result of such event. (3c) If In case the ~~Company shall~~ Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, issue ~~any~~ rights or warrants for a period expiring within 60 days to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price ~~per share (or having a Conversion Price per share) less than the Current Market Price~~ per share of Common Stock (~~as determined in accordance with clause (8)~~ or having a conversion, exchange or exercise price per share of ~~this Section 4.06(a)~~Common Stock) less than the Closing Sale Price of the Common Stock on the ~~record~~ Trading Day immediately preceding the date of the announcement by public notice of such issuance or distribution (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the ~~determination~~ security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of ~~stockholders entitled to receive~~ or exchange or exercise for such ~~rights~~ security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or ~~warrants~~exercisable security), then the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record~~ date of announcement by a ~~fraction~~ fraction: (1) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock and OP Units outstanding at the close of business on ~~such record~~ the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the ~~convertible~~ convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and (2) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock and OP Units outstanding at on the close of business on ~~such record~~ the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate ~~conversion~~ conversion, exchange or exercise price of the ~~convertible~~ convertible, exchangeable or exercisable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at such Closing Sale Price of the ~~Current Market Price per share of~~ Common ~~Stock on such record date~~Stock. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date for such ~~record date~~determination. To the extent that shares of Common Stock (or securities ~~convertible~~ convertible, exchangeable or exercisable into shares of Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. If 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~~ which would then be in effect if the ~~record date~~ Record 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current Market Price per share of Common Stock~~ such Closing Sale Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of ~~Directors~~Trustees. (4A) If In case the ~~Company shall make a~~ Trust shall, at any time or from time to time after the Original Issue Date while any of the Series C Preferred Shares are outstanding, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Trust is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its ~~Capital Stock~~capital stock, ~~other than Common Stock, or~~ evidences of ~~Indebtedness~~ its indebtedness or other ~~assets~~ assets, including securities, (including ~~securities~~capital stock of any subsidiary of the Trust) but excluding (i) dividends or distributions of Common Stock referred to in Section (d)(7)(a) of ~~the Company~~ this Article SIXTH, (~~excluding (x~~ii) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~(d)(7)(c), (yiii) dividends and distributions paid exclusively in cash referred to in Section (d)(7)(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with a the reclassification, change, merger, consolidation, ~~merger,~~ combination~~, liquidation, dissolution, winding up~~, sale or conveyance ~~resulting~~ to which Section (d)(8) applies, (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in ~~a change in the conversion consideration pursuant to~~ this Section ~~4.10 and~~ (zd)(7)(d) ~~any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (~~called the “Distributed ~~Securities~~Assets”), ~~then~~ then, in each such ~~case~~ case, subject to subparagraphs (~~unless the Company distributes such Distributed Securities for distribution to the Holders~~ D) and (E) of ~~Securities on such dividend or distribution date~~ this Section (~~as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~d)(7)(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction: (1) the numerator of which ~~the numerator~~ shall be the Current Market ~~Price per share~~ Price; and (2) the denominator of which shall be such Current Market Price, less the ~~Common Stock~~ Fair Market Value on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed ~~Securities~~ Assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding ~~at the close of business~~ on such ~~record~~ Record Date) on such date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the ~~record date~~ opening of business on the day following the Record Date for ~~the determination of stockholders entitled to receive~~ such distribution. 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~~ which would then be in effect if such dividend or distribution had not been declared~~. If the then Fair Market Value~~ . (~~as so determined~~B) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of ~~Directors~~ Trustees determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~(d)(7)(d) by reference to the actual or when issued trading market for any ~~securities~~Distributed Assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to this Section (d)(7)(d) to the extent possible, unless the Board of Trustees determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the ~~Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all~~ holders of ~~its Common Stock consist~~ the Series C Preferred Shares. (C) In the event any such distribution consists of ~~Capital Stock~~ shares of capital stock of, or similar equity interests in, one or more of the Trust’s subsidiaries (a ~~Subsidiary~~ “Spin Off”), the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Spin Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin Off occurs simultaneously with the Spin Oft Fair Market Value of the securities distributed in the Spin Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock on the same Trading Day. (D) Rights or warrants distributed by the Trust to all holders of the outstanding shares of Common Stock entitling them to subscribe for or purchase equity securities of the Trust (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of Common Stock shall be deemed not to have been distributed for purposes of this Section (d)(7)(d) (and no adjustment to the Conversion Rate under this Section (d)(7)(d) shall be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different Distributed Assets, or entitle the holder to purchase a different number or amount of the foregoing Distributed Assets or to purchase any of the foregoing Distributed Assets at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section (d)(7)(d): (1) in the ~~“Spinoff Securities”)~~case of any such rights or warrants which shall all have been repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~adjusted~~readjusted upon such final repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share repurchase price received by ~~multiplying~~ a holder of shares 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 repurchase; and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Rate ~~in effect on~~ shall be readjusted as if such rights and warrants had never been issued. (E) For purposes of this Section (d)(7)(d) and Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c), any dividend or distribution to which this Section (d)(7)(d) is applicable that also includes (x) shares of Common Stock, (y) a subdivision, split or combination of shares of Common Stock to which Section (d)(7)(b) applies or (z) rights or warrants to subscribe for or purchase shares of Common Stock to which Section (d)(7)(c) applies (or any combination thereof), shall be deemed instead to be: (1) a dividend or distribution of the ~~record~~ evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision, split or combination or such rights or warrants to which Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c) apply, respectively (and any Conversion Rate adjustment required by this Section (d)(7)(d) with respect to such dividend or distribution. shall then be made), immediately followed by (2) a dividend or distribution of such shares of Common Stock, such subdivision, split or combination or such rights or warrants (and any further Conversion Rate increase required by Section (d)(7)(a), Section (d)(7)(b) and Section (d)(7)(c) with respect to such dividend or distribution shall then be made), except: (i) the Record Date of such dividend or distribution shall be substituted as (i) “the date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend ~~trading commences~~ or other distribution,” “Record Date fixed for such ~~distribution on~~ determinations” and “Record Date” within the ~~New York Stock Exchange~~meaning of Section (d)(7)(a), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) “the ~~number~~ day upon which such subdivision or split becomes effective” or “the day upon which such combination becomes effective” (as applicable) within the meaning of ~~Spinoff Securities distributed in respect of one share of Common Stock~~ Section (d)(7)(b), and (iii) as “the ~~denominator of which shall be~~ Record Date fixed for the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu determination of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be stockholders entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of such rights or ~~warrants pursuant to a Rights Plan complying with~~ warrants” and such “Record Date” within the ~~requirements set forth in the immediately preceding sentence~~ meaning of ~~this paragraph shall not constitute a distribution of rights or warrants pursuant to this~~ Section ~~4.06(a~~(d)(7)(c). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights.; and (6ii) ~~If the Company shall, by dividend~~ any reduction or ~~otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution~~ increase in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock ~~outstanding at the close of business on the Determination Date)~~resulting from such subdivision, such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to split or ~~greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision~~ combination (as applicable) shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. In the event that disregarded in connection with 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 divided or distribution had not been declared~~distribution. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 1 contract

Sources: Merger Agreement (Newkirk Master Lp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of outstanding Common ~~Stock~~ Shares in ~~shares of~~ Common ~~Stock~~Shares, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to such record~~ at the opening of business on the date following the Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the sum of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the ~~close~~ Close of ~~business~~ Business on ~~such record date~~ the Record Date plus the total number of ~~shares of~~ Common ~~Stock~~ Shares constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the ~~close~~ Close of ~~business~~ Business on the Record Date, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ increase to become effective immediately after ~~such record date~~the opening of business on the day following the Record Date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of ~~shares of~~ Common ~~Stock~~ Shares at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common ~~Stock~~ Shares held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 1005(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) If In case the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights issues to all holders of ~~its outstanding~~ Common ~~Stock~~ Shares rights or warrants entitling them (to purchase Common Shares, for a period expiring within 45 forty-five (45) days ~~after~~ of the record date for such ~~distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock)~~ issuance, at a price per share ~~(or having a Conversion Price per share)~~ that is less than the ~~Current Market Price per share~~ average of ~~Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ the ~~record date~~ Closing Sale Prices for the ~~determination of stockholders entitled to receive~~ ten (10) consecutive Trading Days immediately preceding, but not including, the date such ~~rights or warrants~~issuance is first publicly announced by the Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the ~~close~~ Close of ~~business~~ Business on ~~such record date~~ the Record Date plus the total number of additional Common Shares offered for subscription or purchase, and (ii) the denominator of which shall be the sum of the number of ~~additional shares of~~ Common ~~Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock~~ Shares outstanding at the ~~close~~ Close of ~~business~~ Business on ~~such record date~~ the Record Date plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common ~~Stock on~~ Shares for the ten (10) Trading Days immediately preceding the date such ~~record date~~distribution is first publicly announced by the Company. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after ~~such record date~~the opening of business on the day following the Record Date. To the extent that ~~shares of~~ Common ~~Stock (or securities convertible into Common Stock)~~ Shares are not delivered after the expiration of such ~~rights~~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~~ Shares actually delivered. If 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 ~~the record date for the determination of stockholders entitled to receive~~ such ~~rights~~ Record Date had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common ~~Stock~~ Share for the ten (10) Trading Days immediately preceding the date such distribution is first publicly announced by the Company, and in determining the aggregate offering price of ~~the total number of shares of~~ such Common ~~Stock so offered~~Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) ~~If the Company~~ In case outstanding Common Shares shall ~~make~~ be subdivided into a ~~dividend or other distribution to all holders~~ greater number of ~~its~~ Common ~~Stock of shares of its Capital Stock~~Shares, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) 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 Common Shares shall be combined into a smaller number of Common 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 ~~prior~~ after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of Common Shares, shares of any class of capital stock of the ~~record date fixed for the determination~~ Company (other than Common Shares) or evidences of ~~stockholders entitled~~ indebtedness or assets (including securities, but excluding any rights or warrants referred to ~~receive such~~ in Section 1005(b), and excluding any dividend or distribution (x) paid in cash or (y) referred to in Section 1006 (any of the foregoing hereinafter in this Section 1005(d) called the "DISTRIBUTED SECURITIES")), then, in each such case the Conversion Rate shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed Securities so distributed applicable to one ~~share of~~ Common ~~Stock (determined on~~ Share, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such ~~record date). Such adjustment~~ Record Date; provided, that if the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after the record date for the determination of stockholders~~ be entitled to receive upon conversion the amount of Distributed Securities such Holder would have received had such Holder converted each Security on the Record Date; provided, further, that if such Distributed Securities are so distributed, prior to the date that is five years plus one day after the later of the Issue Date and the last date on which Securities were issued pursuant to the Initial Purchasers' Option, such Holder shall only be entitled to receive, in addition to Common Shares to which such Holder is entitled to receive upon conversion, Prescribed Securities of a type specified by the Board of Directors and the Conversion Rate shall, if necessary, be adjusted so that the value of such Prescribed Securities is equivalent in value as of the date of such distribution (based on the average of the closing sale prices for such Prescribed Securities, if available) for the ten (10) Trading Day period beginning on the fifth Trading Day after such distribution, and if such closing sale prices are not available, as determined by the Board of Directors, to the consideration received by holders of Common shares pursuant to such distribution of Distributed Securities, provided that the Company may elect at the Company's sole option, to deliver such Distributed Securities instead of such Prescribed Securities. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~1005(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 on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Securities distributed by the Company to all holders of ~~its~~ Common ~~Stock~~ Shares consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, then the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ adjusted so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common ~~Stock over~~ Shares for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which~~ trading" of the Common ~~Stock is then listed or quoted~~ Shares commences with respect to such Distributed Securities (~~such consecutive Trading Day period shall be defined as~~ the ~~“Spinoff Valuation Period”~~"EX-DIVIDEND DATE") ~~and~~ plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ Fair Market Value of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff~~ Distributed Securities distributed in respect of ~~one share~~ each Common Share for which this Section 1005(d) applies which shall equal the number of Distributed Securities distributed in respect of each Common ~~Stock~~ Share multiplied by the average of the Distributed Securities Closing Sale Price for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common ~~Stock over~~ Shares for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following ~~the date on which the Triggering Distribution is paid. If the amount of~~ such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 1 contract

Sources: Indenture (Fairmont Hotels & Resorts Inc)

Adjustment of Conversion Rate. The conversion rate as stated in paragraph 8 of the Securities (athe "Conversion Rate") ~~The Conversion Rate~~ shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall (i) pay a dividend ~~or make a distribution to all holders of outstanding~~ on its Common Stock in shares of Common Stock, ~~the Conversion Rate~~ (ii) make a distribution on its Common Stock in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this IndentureStock, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2iii) ~~If the Company shall~~ subdivide its outstanding Common Stock into a greater number of shares, or (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have owned had such Security been converted immediately prior to the ~~day upon which~~ happening of such ~~subdivision or combination becomes~~ event. An adjustment made pursuant to this subsection (a) shall become effective ~~shall be,~~ immediately after the record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision dividend or ~~combination of the Common Stock occurs~~ distribution and shall become effective immediately after the effective date ~~upon which such~~ in the case of subdivision or ~~combination becomes effective~~combination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all or substantially all holders of its ~~outstanding~~ Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring ~~within 45~~ not more than 60 days after such ~~distribution~~record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the ~~Current Market Price~~ current market price per share of Common Stock (as determined in accordance with ~~clause~~ subsection (8) d) of this Section ~~4.06(a)~~4.6) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding ~~at the close of business~~ on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) ), and of which the denominator shall be the number of shares of Common Stock outstanding ~~at the close of business~~ on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered ~~for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so ~~offered for subscription or purchase~~offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the ~~Current Market Price~~ current market price per share (as defined in subsection (d) of this Section 4.6) of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To If at the ~~extent that~~ end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock issuable upon conversion of convertible securities actually ~~delivered. If such rights are not so~~ issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors). (4c) If In case the Company shall ~~make a dividend~~ distribute to all or ~~other distribution to~~ substantially all holders of its Common Stock of any shares of ~~its Capital Stock,~~ capital stock of the Company (other than Common Stock), or evidences of ~~Indebtedness~~ indebtedness or other non-cash assets (including ~~securities)~~ securities of any person other than the Company (but excluding (~~x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y~~1) dividends ~~and~~ or distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash or (2) dividends or distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for ~~which an adjustment was made~~ or purchase any of its securities (excluding those rights and warrants referred to in subsection (b) of this Section 4.6 and also excluding the distribution of rights to all holders of Common Stock pursuant to ~~Section 4.06(a)(6)) (~~the ~~“Distributed Securities”~~adoption of a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by multiplying the current Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the ~~Current Market Price~~ current market price per share (as defined in subsection (d) of this Section 4.6) of the Common Stock on ~~such~~ the record date for the determination of shareholders entitled to receive such distribution, and of which the denominator shall be the ~~Current Market Price~~ current market price per share (as defined in subsection (d) of this Section 4.6) of the Common Stock on such record date less the fair market value on such record date (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at on the ~~close of business on such~~ record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (51) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, at any time distribute (a “"Triggering Distribution”") to all or substantially all holders of its Common Stock ~~a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary)~~cash, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect ~~immediately prior to the close of business~~ on the ~~record date for~~ Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution ~~(a “Determination Date”)~~ is declared by the Company by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be ~~such Current Market Price~~ the current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date and the denominator ~~of which~~ shall be ~~the Current Market Price~~ such current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of ~~such~~ cash so distributed, paid or payable on the Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding ~~at the close of business~~ on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (72) If In case any tender offer made by the Company or any of its Subsidiaries for ~~all or any portion of~~ Common Stock shall expire, then, if immediately prior to the ~~tender offer shall require the payment to stockholders~~ opening of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding~~ day after the last date (the “"Expiration Date”") tenders could have been made pursuant to such tender offer (as it may be amended~~) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”~~), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (Ax) the ~~Fair Market Value~~ 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 ~~Time~~ Date (the "Expiration Time") (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and (By) 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 ~~Closing Price~~ current market price per share of Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Trading Day next succeeding the Expiration ~~Date~~ Date, and the denominator ~~of which~~ shall be the product of the number of shares of Common Stock outstanding (including ~~Purchased Shares~~ tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the ~~Closing Price~~ current market price per share of the Common Stock (as determined in accordance with subsection (d) of this Section 4.6) on the Trading Day next succeeding the Expiration Date, such iincrease 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 4.6(c)

Appears in 1 contract

Sources: Indenture (Rf Micro Devices Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall pay a dividend or make a ~~distribution to all holders of outstanding Common Stock~~ distribution, in shares of its Common Stock, on its Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment~~ determination and the numerator shall be ~~made successively whenever any~~ the sum of such number of shares and the total number of shares constituting such dividend or ~~distribution is made and shall~~ other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Companydetermination. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 11.5(a) is declared but is not so paid or made and not required to be so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its ~~outstanding~~ Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase ~~shares of~~ Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price per share of Common Stock (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a)~~11.5(g) on below) at the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a fraction the denominator 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered ~~for subscription or~~ would purchase ~~(or~~ at such Current Market Price and the ~~aggregate conversion price~~ numerator of ~~the convertible securities so offered for subscription or purchase,~~ which shall be ~~determined by multiplying~~ the number of shares of Common Stock ~~issuable upon conversion~~ outstanding on the date fixed for determination of stockholders entitled to receive such ~~convertible securities by~~ rights or warrants plus the ~~Conversion Price per share~~ number of additional shares of Common Stock ~~pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date~~offered for subscription or purchase. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the record date for the determination of the stockholders entitled to receive such ~~record date~~rights or warrants. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered or required to be delivered after the expiration of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued and not required to be so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if ~~the~~ such record date for the determination of stockholders entitled to receive such rights or warrants had not been fixed. . (c) In ~~determining whether any rights entitle the stockholders to subscribe for or purchase~~ case outstanding shares of Common Stock at shall be subdivided into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ greater number of shares of Common ~~Stock so offered~~Stock, ~~there~~ the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be ~~taken~~ proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into ~~account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof~~a smaller number of shares of Common Stock, the ~~value~~ Conversion Rate in effect at the opening of business on the day following the day upon which such ~~consideration~~combination becomes effective shall be proportionately reduced, ~~if other than cash~~such reduction or increase, as the case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company shall ~~make a dividend or other distribution~~ distribute to all holders of its Common Stock of shares of ~~its Capital Stock,~~ any class of capital stock of the Company (other than Common Stock, ) or evidences of ~~Indebtedness~~ its indebtedness or assets (excluding cash dividends or other ~~assets (including securities)~~ distributions to the extent paid from retained earnings of the ~~Company~~ Company) or rights or warrants to subscribe for or purchase any of its securities (excluding (xthose referred to in Section 11.5(b) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)above) (any of the “foregoing hereinafter in this Section 11.5(d) called the "Distributed Securities”"), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the record date with respect to such ~~record date~~ distribution by a fraction of which the ~~numerator~~ denominator shall be the Current Market Price per share of the Common Stock on such record date less the fair market value on such record date (as determined by the Board of Directors of the Company, whose determination shall be conclusive, and described in a certificate filed with the Trustee) of the Distributed Securities applicable to one share of Common Stock and the numerator of which ~~the denominator~~ shall be the Current Market Price per share ~~on such record date less the fair market value (as determined by reference to the Current Market Price~~ of the ~~Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of~~ Common Stock ~~(determined~~ on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the ~~determination~~ determina tion of ~~stockholders~~ shareholders entitled to receive such distribution; such adjustment shall become effective immediately prior to the opening of business on the day following such record date. In Notwithstanding the foregoing, 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the Distributed Securities ~~so distributed~~ applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share~~ of the Common Stock on ~~such~~ the relevant record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder of a Security~~ Noteholder shall have the right to receive upon conversion the amount of Distributed Securities ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on such record date. In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such distribution had not been declared. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this ~~Section 4.06(a)(4~~subsection (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. Notwithstanding the ~~foregoing, if the securities distributed by the Company to all holders~~ foregoing provisions of ~~its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company~~ this subsection (~~the “Spinoff Securities”~~d), ~~the Conversion Rate~~ no adjustment shall be ~~adjusted, unless~~ made thereunder for any distribution of Distributed Securities if the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate proper provision so that each ~~Holder~~ holder of ~~Securities shall have the right to receive upon conversion thereof the amount of~~ a Security who converts such ~~Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on~~ Security (or any portion thereof) after the record date ~~with respect to~~ for such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not distribution shall be entitled to receive ~~any rights~~ upon such conversion, in ~~respect of~~ addition to the shares of Common Stock issuable upon such conversion, the amount and kind of Distributed Securities that such holder would have been entitled to receive if such holder had, immediately prior to such record date, converted such Security into Common Stock, PROVIDED that, with respect to any Distributed Securities that are convertible, exchangeable or exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of ~~the Securities~~ such Security would be convertible, exchangeable or exercisable, as ~~a result of the timing of the Conversion Date~~applicable, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution without any loss of rights or ~~warrants pursuant to~~ privileges for a ~~Rights Plan complying with the requirements set forth in the immediately preceding sentence~~ period of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption at least 60 days following conversion of such ~~Rights in accordance with any Rights Plan or the termination or invalidation of any Rights~~Security. (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 11.5(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the average of the last reported sales price of the Common Stock (determined as provided in Section 11.5(g)) during the ten Trading Days (as defined in Section 11.5(g)) next preceding the date of declaration of such dividend and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, unless the ~~Conversion Rate shall be increased~~ Company elects to reserve such cash for distribution to the holders of the Securities upon the conversion of the Securities so that any such holder converting Securities will receive upon such conversion, in addition to the ~~same shall equal~~ shares of Common Stock to which such holder is entitled, the ~~rate determined by multiplying~~ amount of cash which such ~~Conversion Rate in effect~~ holder would have received if such holder had, immediately prior to ~~the close of business on~~ the record date for such ~~Triggering Distribution (a “Determination Date”) by a fraction~~distribution of cash, ~~the numerator of which shall be such Current Market Price per share of the~~ converted its Securities into Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)Stock, the Conversion Rate shall be ~~increased~~ 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 Expiration Date~~ such record date by a fraction of which the denominator shall be such Current Market Price of the Common Stock on the record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the numerator of which shall be the ~~sum of (A) the Fair~~ Current Market ~~Value~~ Price of the ~~aggregate consideration payable~~ Common Stock on such record date; such adjustment to ~~stockholders~~ be effective immediately prior to the opening of business on the day following the record date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of cash such holder would have received had such holder converted each Security on the record date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this subsection (e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this subsection (e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (f) In case a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) that combined together with 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, by the Company or any subsidiary of the Company 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 (f) has been made, exceeds 15% of the product of the Current Market Price of the Common Stock 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) 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 adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (A) the numerator of which shall be equal to (1) the product of (x) the Current Market Price of the Common Stock on the date of the Expiration Time and (y) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (2) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (B) the denominator of which shall be equal to the product of (x) the Current Market Price of the Common Stock as of the Expiration Time and (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 Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the “"Purchased Shares~~”) and (B)~~ "). In the ~~product of~~ event that the ~~number of~~ Company is obligated to purchase shares ~~of Common Stock outstanding (less~~ pursuant to any ~~Purchased Shares and excluding~~ such tender offer, but the Company is permanently prevented by applicable law from effecting any ~~shares held in~~ such purchases or all such purchases are rescinded, the ~~treasury of the Company) at the Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which~~ Conversion Rate shall again be adjusted to be the ~~product~~ Conversion Rate which would then be in effect if such tender offer had not been made. (g) For purposes of this Section 11.5, the ~~number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in~~ following terms shall have the ~~treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i~~meaning indicated:

Appears in 1 contract

Sources: Indenture (World Color Press Inc /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 16.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~16.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~16.05(a) (any of the foregoing hereinafter in this Section 16.05(d)) (called the ~~“Distributed Securities”~~"SECURITIES")), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided that if the then fair market value (as ~~determined by reference to the Current Market Price of the Distributed Securities~~so determined) ~~on such record date~~ of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~16.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Record Date. If the dividend or distribution requiring an adjustment pursuant to this clause (d) consists of ~~the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders~~ capital stock of ~~its Common Stock consist of Capital Stock of~~any class or series, or similar equity ~~interests in~~interests, of or relating to a Subsidiary or other business unit of the ~~Company~~ Company, for purposes of making such adjustment, (i) the Current Market Price shall be determined as of the date (the ~~“Spinoff Securities”)~~"EX-DIVIDEND DATE") on which "ex-dividend trading" commences for such distribution on the NASDAQ National Market 63 or such other national or regional exchange or market on which such securities are then listed or quoted, based on the ~~Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders~~ average of the ~~Securities, so that~~ Closing Sale Prices of the ~~same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed~~ Common Stock for the ~~determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of~~ ten (A10) ~~the average Closing Price of one share of Common Stock over the 10 consecutive~~ Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) Dividend Date and ~~(B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by~~ (ii) the Fair Market Value of such dividend or distribution shall equal the number of ~~Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock ~~and the denominator of which shall be~~ multiplied by the average ~~Closing Price~~ of ~~one share~~ the closing sale prices of ~~Common Stock over~~ those securities distributed for the ~~Spinoff Valuation Period, such adjustment to become effective immediately prior to~~ ten (10) Trading Days commencing on and including the ~~opening of business on the fifteenth~~ fifth Trading Day after the ~~date on which ex~~Ex-~~dividend trading commences; provided, however, that~~ Dividend Date. Rights or warrants distributed by the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 16.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate as under this Section 16.05 will be required) until the ~~result~~ occurrence of the ~~issuance~~ 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 16.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any ~~Rights,~~ and each such event shall be deemed to be the date of distribution ~~of separate certificates representing~~ and record date with respect to new rights or warrants with such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the~~ rights (and a termination or ~~invalidation~~ expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any ~~Rights.~~ distribution (6or deemed distribution) ~~If the Company shall~~of rights or warrants, ~~by dividend~~ or ~~otherwise, at~~ any ~~time distribute~~ Trigger Event or other event (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~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 16.05 was made, ~~whether voluntary~~ (1) in the case of any such rights or ~~involuntary)~~warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~increased so that~~ readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~same shall~~ case may be, as though it were a cash distribution, equal ~~the rate determined by multiplying such Conversion Rate in effect immediately prior~~ to the ~~close of business on the record date for such Triggering Distribution (a “Determination Date”)~~ per share redemption or repurchase price received by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share holder or holders of Common Stock with respect to such rights or warrants (~~determined on the basis of the number of shares~~ assuming such holder had retained such rights or warrants), made to all holders of Common Stock ~~outstanding at the close~~ as of ~~business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following~~ the date ~~on which the Triggering Distribution is paid. If the amount~~ of such ~~Triggering Distribution is equal to~~ redemption or ~~greater than~~ repurchase, and (2) in the ~~Current Market Price per share~~ case of ~~the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so~~ such rights or warrants that ~~each Holder of a Security~~ shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend expired 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 divided or distribution had not~~ been ~~declared. (7) If~~ terminated without exercise by any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)holders thereof, the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered readjusted as if such rights and warrants had not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ibeen issued.

Appears in 1 contract

Sources: Indenture (Celgene Corp /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock payable in shares of Common ~~Stock~~Stock (including the Announced Split, as hereinafter defined), the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution (except in the case of the Announced Split, which shall be ~~increased so~~ that ~~the same shall equal the rate determined by multiplying the~~ Conversion Rate in effect ~~immediately prior to such record date by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding~~ at the ~~close~~ opening of business on ~~such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator~~ December 20, 1999) shall be ~~the number of shares of Common Stock outstanding at the close of business on~~ increased by dividing such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination (or in the case of the Announced Split, on December 20, 1999). 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. The "Announced Split" shall be the two-for-one stock split in the form of a stock dividend payable on December 19, 1999 to holders of Common Stock of the Company of record as of November 19, 1999. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other assets (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) mergers or consolidations to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 12.4) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~determination of stockholders entitled to receive such distribution. If ~~the amount of~~ after any such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date~~date fixed for determination, ~~in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that~~ any such ~~Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date of the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (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 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 (5) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer ~~made~~ by the Company or any of its Subsidiaries for all or any portion of the Common Stock ~~shall expire, then, if~~ concluded within the 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 ~~offer shall require~~ amount") exceeds 10% of the ~~payment to stockholders~~ product of ~~consideration~~ the current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 12.4) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the ~~aggregate consideration payable~~ Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 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,~~ 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 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 (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding~~ 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 12.4). (8) For the purpose of any ~~shares held in~~ computation under paragraphs (2), (4), (5) or (6) of this Section 12.4, the ~~treasury of the Company) at the Expiration Time multiplied by the Closing Price~~ 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 Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 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 ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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 iincreases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. 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) Notwithstanding the foregoing provisions of this Section, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future pla

Appears in 1 contract

Sources: Indenture (Bea Systems Inc)

Adjustment of Conversion Rate. ~~(a)~~ The ~~Conversion Rate~~ number of shares of Common Stock into which each Security shall be ~~adjusted~~ convertible (herein called the “Conversion Rate”) shall be subject to adjustment from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall (1) pay a dividend or in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to ~~all~~ holders of Common Stock, (3) subdivide the outstanding shares of Common Stock in into a greater number of shares of Common Stock or (4) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such ~~record date by a fraction of which the numerator~~ action shall be adjusted so that the ~~sum~~ Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock ~~outstanding at the close of business on~~ which he would have owned immediately following such ~~record date plus the total number of shares of Common Stock constituting~~ action had such ~~dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~Securities been converted immediately prior thereto. ~~Such~~ An adjustment ~~shall be~~ made ~~successively whenever any such dividend or distribution is made and~~ pursuant to this subsection (a) shall become effective immediately after ~~such~~ the record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision dividend or ~~combination of the Common Stock occurs~~ distribution and shall become effective immediately after the effective date ~~upon which such~~ in the case of a subdivision or ~~combination becomes effective~~combination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to substantially all holders of ~~its outstanding~~ Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring ~~within~~ not more than 45 days after such ~~distribution~~record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share of Common Stock~~ current market price (as determined ~~in accordance with clause~~ pursuant to subsection (8) d) below) of ~~this Section 4.06(a))~~ the Common Stock on ~~the~~ such record ~~date for the determination of stockholders entitled to receive such rights or warrants~~date, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall be equal to the ~~rate~~ number determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding ~~at the close of business~~ on such record ~~date~~ date, plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) ), and of which the denominator shall be the number of shares of Common Stock outstanding ~~at the close of business~~ on such record date plus the number of shares of Common Stock which the aggregate offering price of the ~~total number of~~ offered shares of the Common Stock ~~so offered for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at ~~the Current Market Price per share of Common Stock on~~ such ~~record date~~current market price. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ adjustments shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case the Company shall ~~make a dividend or other distribution~~ distribute to all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock,~~ any class of stock other than Common Stock, or evidences of ~~Indebtedness~~ indebtedness or other assets (~~including securities)~~ other than cash dividends out of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3~~current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (yother than those referred to in subsection (b) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”above), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the ~~rate~~ number determined by multiplying the Conversion Rate in effect immediately prior to the date of such ~~record date~~ distribution by a fraction of which the numerator shall be the ~~Current Market Price per share~~ current market price (determined as provided in subsection (d) below) of the Common Stock on ~~such~~ the record date mentioned below, and of which the denominator shall be such current market price of the ~~Current Market Price per share on such record date~~ Common Stock less the then fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors of the ~~Distributed Securities~~Company, whose determination shall be conclusive evidence of such fair market value) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ assets so distributed or of such subscription rights or warrants applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date)~~Stock. Such adjustment ~~shall be made successively whenever any such distribution is made and~~ shall become effective immediately after the record date for the determination of ~~stockholders~~ the holders of Common Stock entitled to receive such distribution. In Notwithstanding the foregoing, in the event that ~~such dividend~~ the Company shall distribute rights or ~~distribution is not so paid or made~~warrants (other than those referred to in subsection (b) above) ("Rights ") pro rata to holders of Common Stock, 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record dateCompany may, in lieu of ~~the foregoing adjustment~~making any adjustment pursuant to this Section 4.06, ~~adequate~~ make proper provision ~~shall be made~~ so that each holder of a Security ~~shall have the right to receive upon conversion the amount of Distributed Securities so distributed that~~ who converts such ~~Holder would have received had such Holder converted each~~ Security ~~on such record date. If the Board of Directors determines the Fair Market Value of~~ (or any ~~distribution for purposes of this Section 4.06(a)(4~~portion thereof) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on after the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights expiration or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions redemption of the Rights ~~Plan and the Holders would not~~ shall be entitled to receive ~~any rights~~ upon such conversion, in ~~respect of~~ addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the ~~Securities as~~ date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a ~~result~~ holder of a number of shares of Common Stock equal to the ~~timing~~ number of Conversion Shares is entitled at the ~~Conversion~~ time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the ~~Conversion Rate will be adjusted as if the Company distributed~~ same number of Rights to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to which a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis holder of the number of shares of Common Stock ~~outstanding at~~ into which the ~~close~~ principal amount of ~~business on~~ the ~~Determination Date), such increase to become effective~~ Security so converted was convertible immediately prior to the ~~opening of business~~ Distribution Date would have been entitled on the ~~day following~~ Distribution Date in accordance with the ~~date on which~~ terms and provisions of and applicable to the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declaredRights. (7d) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price The current market price per share of Common Stock on ~~the Trading Day next succeeding the last~~ any date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be ~~increased so that~~ deemed to be the ~~same shall equal~~ average of the ~~rate determined by multiplying~~ daily closing prices for thirty consecutive trading days commencing forty-five trading days before the ~~Conversion Rate~~ day in ~~effect immediately prior to the close of business on the Expiration Date by a fraction of which the numerator~~ question. The closing price for each day shall be the ~~sum of (A)~~ last reported sales price regular way or, in case no such reported sale takes place on such date, the ~~Fair Market Value~~ average of the ~~aggregate consideration payable to stockholders based~~ reported closing bid and asked prices regular way, in either case on the ~~acceptance (up~~ New York Stock Exchange, or if the Common Stock is not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any ~~maximum specified in~~ national securities exchange, the ~~terms~~ closing sale price of the ~~tender offer) of all shares validly tendered and not withdrawn as~~ Common Stock, or in case no reported sale takes place, the average of the ~~Expiration Time (~~closing bid and asked prices, on NASDAQ or any comparable system, or if the ~~shares deemed so accepted~~Common Stock is not quoted on NASDAQ or any comparable system, ~~up to any such maximum~~the closing sale price or, ~~being referred to as~~ in case no reported sale takes place, the ~~“Purchased Shares”) and (B) the product~~ average of the ~~number~~ closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose. (e) In any case in which this Section 4.06 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10 below) issuing to the holder of any Security converted after such record date the shares of Common Stock ~~outstanding (less any Purchased Shares~~ and ~~excluding any shares held in the treasury~~ other capital stock of the ~~Company) at~~ Company issuable upon such conversion over and above the ~~Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of~~ shares of Common Stock ~~outstanding (including Purchased Shares but excluding any shares held in the treasury~~ and other capital stock of the ~~Company) at~~ Company issuable upon such conversion only on the ~~Expiration Time multiplied by the Closing Price per share~~ basis of the ~~Common Stock on~~ Conversion Rate prior to adjustment; and, in lieu of the ~~Trading Day next succeeding~~ shares the ~~Expiration Date~~issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such ishares.

Appears in 1 contract

Sources: Indenture (Westmoreland Coal Co)

Adjustment of Conversion Rate. ~~(a)~~ The Base Conversion Rate shall be adjusted from time to time by the ~~Company~~ Issuer as follows: (1a) If In case the ~~Company~~ Issuer shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Base Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 12.11(a) is declared but not so paid or made, the Base Conversion Rate shall again be adjusted to the Base Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2b) If In case the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company Issuer shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on~~ for the ~~record~~ 10 Trading Days preceding the declaration date for ~~the determination of stockholders entitled to receive~~ such ~~rights or warrants~~distribution, the Base Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Base Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days preceding the declaration date for such ~~record date~~distribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~rights or warrants, the Base Conversion Rate shall be readjusted to the Base 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. If such rights or warrants are not so issued, the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate that would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the declaration date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the ~~Company~~ Issuer for such rights or warrants and any amount payable on exercise or ~~conversion~~ exchange thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the ~~Company~~ Base Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall ~~make~~ be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Base 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. (d) In case the Issuer shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of any class of its ~~Capital Stock, other than Common Stock,~~ capital stock or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding (x) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~12.11(b), (y) ~~dividends and distributions~~ any dividend or distribution (I) paid exclusively in ~~connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ cash or ~~conveyance resulting~~ (II) referred to in ~~a change in the conversion consideration pursuant to~~ Section ~~4.10~~ 12.11(a) and (z) any ~~dividend or~~ distribution ~~paid exclusively~~ referred to in ~~cash for which an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~12.11(g)) (any of the “foregoing hereinafter in this Section 12.11(d) called the "Distributed ~~Securities”~~Property")), ~~then~~ then, in each such ~~case (unless~~ case, the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Base Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Base Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property so distributed applicable to one share of Common ~~Stock (determined on~~ Stock, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event Record Date; provided 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 then Fair Market Value (as so determined) of the portion of the Distributed ~~Securities~~ Property so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion the amount of ~~cash so distributed that~~ Distributed Property such Holder would have received had such ~~Holder~~ holder converted each Security on ~~such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iRecord

Appears in 1 contract

Sources: Indenture (Getty Images Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying the Conversion Rate in effect at the close of business on such Record Date by a fraction of which the numerator shall be the total number of shares that would be outstanding immediately following 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 Record Date fixed for such determination, such reduction to become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 12.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (b) If the 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, if the outstanding shares of Common Stock shall 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 reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (c) If the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into 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 (or a conversion price per share) less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the close of business on such ~~record date~~ Record Date 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 ~~such record date~~ the Record Date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible) and of which the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on ~~such record date~~ the Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered ~~for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price ~~per share~~ as of ~~Common Stock on~~ the business day immediately preceding the announcement of the issuance of such ~~record date~~rights. Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion Rate shall be readjusted to be the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if ~~the record date~~ such Record 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors. (4d) If the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock,~~ any class of capital stock of the Company (other than ~~Common Stock,~~ any dividends or distributions to which Section 12.05(a) applies) or evidences of ~~Indebtedness~~ its indebtedness, cash or other assets (including securities~~) of the Company (~~, but excluding (xi) any ~~issuance~~ rights or warrants of ~~rights for which an adjustment was made pursuant~~ a type referred to in Section ~~4.06(a)(3),~~ 12.05(c) and (yii) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash ~~for which an adjustment was made~~ pursuant to Section ~~4.06(a)(6~~12.05(e)) (the “foregoing hereinafter in this Section 12.05(d) called the "Distributed Securities”"), then ~~in each such case~~ (unless the Company distributes such Distributed Securities for distribution to the ~~Holders~~ holders of ~~Securities~~ Notes on such dividend or distribution date (as if each Holder had converted such ~~Security~~ Note into Common Stock immediately prior to the record date with respect to such distribution)) ), in each such case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date with respect to such ~~record date~~ distribution by a fraction of which the numerator shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record~~ date and ~~of which~~ the denominator shall be ~~the~~ such Current Market Price ~~per share on such record date~~ less the fair market value (as determined in good faith by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive and described in a resolution of the ~~Distributed Securities~~Board of Directors) on such ~~record~~ date of the portion of the Distributed Securities ~~so distributed~~ applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such ~~record date~~Record Date)~~. Such adjustment~~ , such reduction to become effective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each holder of Notes shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion of a Note (or any portion thereof) the amount of Distributed Securities such ~~distribution~~holder would have received had such holder converted such Note (or portion thereof) immediately prior to such Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~12.05(c) by reference to the actual or when issued trading market for any ~~securities~~securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to ~~any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this~~ Section ~~4.06~~ 12.05(g) to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rightspossible. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 1 contract

Sources: Indenture (Amkor International Holdings, LLC)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If the Company shall (i) pay a dividend or make a distribution ~~to all holders of outstanding~~ on its Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2ii) ~~If the Company shall~~ subdivide its outstanding Common Stock into a greater number of shares, or (iii) combine its outstanding Common Stock into a smaller number of ~~shares~~shares or (iv) issue by reclassification of its shares of Common Stock any shares of capital stock of the Company, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the Holder of any 2020 Debenture thereafter surrendered for conversion shall be entitled to receive that number of shares of capital stock of the Company which it would have owned had such 2020 Debenture been converted immediately prior to the ~~day upon which~~ occurrence of such ~~subdivision or combination becomes~~ event. An adjustment made pursuant to this subsection (a) shall become effective ~~shall be,~~ immediately after the record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision dividend or ~~combination of the Common Stock occurs~~ distribution and shall become effective immediately after the effective date ~~upon which~~ in the case of subdivision, combination or reclassification (or immediately after the record date if a record date shall have been established for such ~~subdivision~~ event). If, as a result of an adjustment made pursuant to this Section 1506(a), the Holder of any 2020 Debenture thereafter surrendered for conversion shall be entitled to receive shares of two or ~~combination becomes effective~~more classes or series of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a Board Resolution filed with the Trustee) shall determine the allocation of the adjusted Conversion Rate for the 2020 Debentures between or among shares of such classes or series of capital stock. (3b) If the Company shall issue ~~any~~ rights or warrants to all holders of its ~~outstanding~~ Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring ~~within~~ not more than 45 days after such ~~distribution~~record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the ~~Current Market Price~~ current market price per share of Common Stock (as determined in accordance with ~~clause (8) of this~~ Section ~~4.06(a~~1506(e)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a ~~fraction~~ fraction, of which the numerator shall be the number of shares of Common Stock outstanding at on the ~~close~~ date of ~~business on~~ issuance of such ~~record date~~ rights or warrants plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) ), and of which the denominator shall be the number of shares of Common Stock outstanding ~~at the close of business~~ on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered ~~for subscription or purchase~~ (or the aggregate conversion price of the convertible securities so ~~offered for subscription or purchase~~offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the ~~Current Market Price~~ current market price per share (as determined in accordance with Section 1506(e)) of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To For the ~~extent that shares~~ purposes of ~~Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights~~this Section 1506(b), ~~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 been made on the basis of delivery of only~~ the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate outstanding shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of the number of shares of Common Stock outstanding (less any Purchased Shares and excluding any include shares held in the treasury of the Company~~) at the Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which~~ . The Company shall ~~be the product of the number~~ not issue any rights or warrants in respect of shares of Common Stock ~~outstanding (including Purchased Shares but excluding any shares~~ held in the treasury of the Company) . If at the ~~Expiration Time multiplied by the Closing Price per share~~ end of the ~~Common Stock on the Trading Day next succeeding the Expiration Date,~~ period during which such irights

Appears in 1 contract

Sources: Second Supplemental Indenture (Weatherford International Inc /New/)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If~~ In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on its Common Stock exclusively in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be ~~increased~~ adjusted so that ~~the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by~~ a ~~fraction of which the numerator~~ Holder upon conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting~~ it would have been entitled to after such dividend or other distribution ~~and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any~~ if it had converted its Security immediately prior to such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 declaredother distribution. (2b) If In case the Company shall ~~subdivide~~ pay or make a dividend or other distribution on its ~~outstanding~~ Common Stock ~~into a greater number of shares~~consisting exclusively of, or ~~combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective~~ shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall otherwise issue ~~any rights~~ to all holders of its ~~outstanding~~ Common ~~Stock~~ Stock, rights, warrants or options entitling ~~them (~~the holders thereof, for a period ~~expiring within~~ not exceeding 45 ~~days after such distribution)~~ days, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in Section 12.04(h)) of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ price of the total number of shares so offered would purchase at the current market price per share (determined as provided in Section 12.04(h)), such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. (c) In case outstanding shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which~~ shall be ~~determined by multiplying the~~ subdivided into a greater number of shares of Common ~~Stock issuable upon conversion of such convertible securities by~~ Stock, the Conversion ~~Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase~~ Rate in effect at the ~~Current Market Price per share~~ opening of ~~Common Stock~~ business on the day following the day upon which such ~~record date. Such adjustment~~ subdivision becomes effective shall be ~~made successively whenever any such rights are issued~~proportionately increased, ~~and shall become effective immediately after such record date. To the extent that~~ and, conversely, in case outstanding shares of Common Stock ~~(or securities convertible~~ shall each be combined into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the a smaller number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock~~securities, cash or ~~evidences of Indebtedness or other~~ assets (~~including securities) of the Company (~~excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, warrants or options referred to in Section ~~4.06(a)(3~~12.04(b), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such and any dividend or distribution ~~date (as if each Holder had converted such Security into Common Stock immediately prior~~ referred to ~~the record date with respect to such distribution~~in Section 12.04(a)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted ~~so that the same shall equal the rate determined~~ by multiplying the Conversion Rate in effect immediately prior to ~~such record date by a fraction~~ the earlier of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution ~~is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in Section 12.04(h)) and the denominator shall be such current market price less the fair market value (as determined in good faith by the Board of ~~(A)~~ Directors, whose determination shall be conclusive and described in a Board Resolution), on the ~~average Closing Price~~ date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation PeriodStock, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after~~ day next following the date ~~on which ex-dividend trading commences; provided, however, that~~ fixed for the ~~Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount~~ payment of such ~~Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such~~ distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision . The provisions of this Section ~~4.06~~ 12.04(d) shall not be applicable to ~~the extent~~ an event covered by Section 12.04(k). For purposes of this Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or distribution for which an adjustment is being made pursuant to this Section 12.04(d) that ~~such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the~~ also includes shares of Common Stock ~~issued upon conversion~~or rights, ~~the Rights described therein (whether~~ warrants or ~~not the Rights have separated from the Common Stock at the time of conversion), subject~~ options to ~~the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the~~ subscribe for or purchase shares of Common Stock ~~in accordance with the provisions~~ shall be deemed instead to be (A) a dividend or distribution of the ~~Rights Plan and the Holders would not be entitled to receive any rights in respect~~ evidences of ~~the~~ indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock ~~issuable upon conversion of the Securities as a result of the timing of the Conversion Date~~or such rights, ~~the~~ warrants or options (making any Conversion Rate ~~will be adjusted as if the Company distributed to all holders~~ adjustment required by this Section 12.04(d)) immediately followed by (B) a dividend or distribution of such shares of Common Stock ~~Distributed Securities~~ or such rights (making any further Conversion Rate adjustment required by Sections 12.04(a) or 12.04(b)), except (1) the record date of such dividend or distribution as ~~provided~~ defined in this Section 12.04(d) shall be substituted as “the ~~first paragraph~~ date fixed for the determination of ~~clause~~ stockholders entitled to receive such dividend or other distributions”, “the date fixed for the determination of stockholders entitled to receive such rights, warrants or options” and “the date fixed for such determination” within the meaning of Sections 12.04(a) and 12.04(b) and (42) 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 this ~~Section 4.06(a~~12.04(d), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6e) If In case the Company shall, by dividend or otherwise, ~~at any time distribute (~~make a ~~“Triggering Distribution”)~~ distribution to all holders of its Common Stock exclusively in cash, the Company shall, in all cases, at the time of such distribution, make a cash payment ~~consisting exclusively~~ to the Holders of all outstanding Securities equal to the amount of cash ~~(excluding any dividend or~~ such Holder would have received with respect to such distribution ~~in connection with the liquidation, dissolution or winding up~~ for all of ~~the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying~~ its Securities had such ~~Conversion Rate in effect~~ Holder converted its Securities into Common Stock immediately prior to the close of business on the date fixed for the determination of the stockholders of record ~~date~~ entitled to such distribution. (f) In case a successful tender or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for ~~such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share~~ all or any portion of the Common Stock on shall involve an aggregate consideration having a fair market value (as determined in good faith by the ~~Determination Date and the denominator~~ Board of ~~which~~ Directors, whose determination shall be conclusive and described in a Board Resolution) at the ~~Current Market Price~~ last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that exceeds the current market price per share (determined as provided in Section 12.04(h)) of the Common Stock outstanding (including any tendered shares) on the ~~Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of~~ Expiration Time times the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share (including any tendered shares) as of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expireExpiration Time, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)in each case, the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying the Conversion Rate in effect immediately prior to the ~~close of business on the~~ Expiration ~~Date~~ Time by a fraction of which (i) the ~~numerator~~ denominator shall be ~~the sum of~~ (Ax) the ~~Fair Market Value~~ product of the current market price per share (determined as provided in Section 12.04(h)) of the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (y) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (Bii) the numerator shall be 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~~x) ~~at the Expiration Time and the Closing Price~~ such current market price per share ~~of Common Stock~~ (determined in accordance with Section 12.04(h)) on the Trading Day next succeeding the Expiration ~~Date and the denominator of which shall be the product of the~~ Time times (y) such number of outstanding shares ~~of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company)~~ at the Expiration Time ~~multiplied by~~ less the ~~Closing Price per share~~ number of Purchased Shares, such increase to become effective immediately prior to the ~~Common Stock~~ opening of business on the ~~Trading Day next succeeding~~ day following the Expiration ~~Date, such i~~Time.

Appears in 1 contract

Sources: Indenture (Transwitch Corp /De)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall ~~pay~~ issue shares of Common Stock as a dividend or ~~make a~~ distribution to ~~all~~ holders of all or substantially all of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock in or combination into a lesser number of shares of Common Stock, the Conversion Rate shall be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the ~~record date~~ Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such ~~dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying~~ event; CR’ = the Conversion Rate in effect immediately ~~prior to~~ after the Ex-Dividend Date for such ~~record date by a fraction of which the numerator shall be the sum of~~ event; OS0 = the number of shares of Common Stock outstanding at immediately prior to the ~~close of business on~~ Ex-Dividend Date for such ~~record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be~~ event; OS’ = the number of shares of Common Stock outstanding at immediately after the ~~close of business on~~ Ex-Dividend Date for such ~~record date~~event. Such adjustment ~~shall be made successively whenever any such dividend or distribution is made and~~ shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companyevent. If any dividend or distribution of the type described in this ~~clause~~ Section 13.04(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall ~~again~~ be ~~adjusted~~ 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 then be in effect if such ~~dividend~~ dividend, distribution, subdivision or ~~distribution~~ combination had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any rights~~ to all or substantially all holders of its outstanding shares of Common Stock rights or warrants entitling them (for a period expiring within 45 sixty (60) calendar days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the ~~Current Market Price per share~~ average of the Last Reported Sale Prices of the Common Stock ~~and in determining~~ over the ~~aggregate offering price~~ ten consecutive Trading Day period ending on the Business Day immediately preceding the date of announcement of such issuance, the ~~total number of shares of Common Stock so offered, there~~ Conversion Rate shall be ~~taken into account any consideration received by~~ adjusted based on the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) following formula: where CR0 = the Conversion Rate in effect immediately prior to the ~~record date fixed~~ Ex-Dividend Date for ~~the determination of stockholders entitled to receive~~ such ~~dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying~~ event; CR’ = the Conversion Rate in effect immediately ~~prior to~~ after the Ex-Dividend Date for such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of event; OS0 = the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the ~~opening of business on the fifteenth Trading Day after the date on which ex~~Ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date Dividend Date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ievent;

Appears in 1 contract

Sources: Indenture (Sandisk Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the Business Day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 16.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the Business Day following the date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 Business Day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the Business 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~16.05(b), ~~(y)~~ excluding any dividends ~~and~~ or distributions in connection with ~~a reclassification~~the liquidation or winding up of the Company, ~~change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10~~ and ~~(z)~~ excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~16.05(a) (any of the foregoing hereinafter in this Section 16.05(d)) (called the ~~“Distributed Securities”~~"SECURITIES")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Debentureholders upon the conversion of the Debentures so that any such holder converting Debentures will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Debentures into Common Stock immediately prior to the ~~record date with respect to such distribution~~Stock Record Date)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Stock Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Stock Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Stock Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Stock Record Date of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the Business Day following such Stock Record Date; provided that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Stock Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Debentureholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Debenture on the Stock Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~16.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Stock Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Stock Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (Ax) the average Closing Sale Price of one share of Common Stock over the 10 ten consecutive Trading Day period (the "SPINOFF VALUATION PERIOD") commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences ~~for such distribution~~ on the Common Stock on the New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (~~B) the product of (i~~y) the average Closing Sale Price over the Spinoff Valuation Period of the ~~Spinoff~~ portion of the Securities ~~multiplied by (ii) the number of Spinoff Securities~~ so distributed ~~in respect of~~ applicable to one share of Common ~~Stock and~~ Stock; and (ii) the denominator of which shall be the average Closing Sale Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading~~ Business Day ~~after the date on which ex-dividend trading commences~~following such Stock Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Debentureholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Debenture on the ~~record date~~ Stock Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 16.06 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate as under this Section 16.06 will be required) until the ~~result~~ occurrence of the ~~issuance~~ 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 16.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any ~~Rights,~~ and each such event shall be deemed to be the date of distribution ~~of separate certificates representing~~ and Stock Record Date with respect to new rights or warrants with such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the~~ rights (and a termination or ~~invalidation~~ expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any ~~Rights.~~ distribution (6or deemed distribution) ~~If the Company shall~~of rights or warrants, ~~by dividend~~ or ~~otherwise, at~~ any ~~time distribute~~ Trigger Event or other event (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~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 16.06 was made, ~~whether voluntary~~ (1) in the case of any such rights or ~~involuntary)~~warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~increased so that~~ readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~same shall~~ case may be, as though it were a cash distribution, equal ~~the rate determined by multiplying such Conversion Rate in effect immediately prior~~ to the ~~close of business on the record date for such Triggering Distribution (a “Determination Date”)~~ per share redemption or repurchase price received by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share holder or holders of Common Stock with respect to such rights or warrants (~~determined on the basis of the number of shares~~ assuming such holder had retained such rights or warrants), made to all holders of Common Stock ~~outstanding at the close~~ as of ~~business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following~~ the date ~~on which the Triggering Distribution is paid. If the amount~~ of such ~~Triggering Distribution is equal to~~ redemption or ~~greater than~~ repurchase, and (2) in the ~~Current Market Price per share~~ case of ~~the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so~~ such rights or warrants that ~~each Holder of a Security~~ shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend expired 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 divided or distribution had not~~ been ~~declared. (7) If~~ terminated without exercise by any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)holders thereof, the Conversion Rate shall be ~~increased so that the same shall equal the rate determined by multiplying~~ readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 16.05(d) in ~~effect immediately prior~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~close~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of ~~business on the Expiration Date~~ Debentures upon conversion by ~~a fraction~~ such holders of ~~which the numerator shall be the sum~~ Debentures to Common Stock. For purposes of (Athis Section 16.05(d) ~~the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered~~ and ~~not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”~~Section 16.05(a) and (Bb), any dividend or distribution to which this Section 16.05(d) ~~the product~~ is applicable that also includes shares of ~~the number of~~ Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock ~~outstanding~~ (~~less any Purchased Shares and excluding any shares held in the treasury~~ or both), shall be deemed instead to be (1) a dividend or distribution of the ~~Company) at the Expiration Time and the Closing Price per share~~ evidences of ~~Common Stock on the Trading Day next succeeding the Expiration Date and the denominator~~ indebtedness, assets or shares of ~~which shall be the product of the number of~~ capital stock other than such shares of Common Stock ~~outstanding~~ or rights or warrants (~~including Purchased Shares but excluding~~ and any Conversion Rate adjustment required by this Section 16.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares ~~held in the treasury~~ of ~~the Company) at the Expiration Time multiplied by the Closing Price per share of the~~ Common Stock ~~on the Trading Day next succeeding the Expiration Date,~~ or such irights or

Appears in 1 contract

Sources: Indenture (Williams Companies Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the ~~Company~~ Issuer as follows: (1a) If In case the ~~Company~~ Issuer shall hereafter pay a dividend or make a distribution to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the ~~Company~~Issuer. The ~~Company~~ Issuer will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the ~~Company~~Issuer. If any dividend or distribution of the type described in this ~~clause~~ Section 13.05(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) ~~If the Company shall subdivide its~~ In case outstanding shares of Common Stock shall be subdivided or split into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the ~~Company~~ Issuer shall issue ~~any~~ rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 sixty (60) calendar days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common ~~Stock)~~ Stock at a price per share (or having ~~a Conversion Price per share~~an exercise, conversion or exchange price) less than the ~~Current Market~~ Closing Sale Price ~~per share~~ of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ Business Day immediately preceding the date ~~for the determination~~ of ~~stockholders entitled to receive~~ announcement of such issuance of such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered (or underlying such convertible, exchangeable or exercisable securities offered) for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date~~ rights or warrants plus ~~the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be~~ the number of shares of Common Stock ~~outstanding at the close of business on such record date plus the number of shares which~~ (or convertible, exchangeable or exercisable securities) that the aggregate offering price of the total number of shares ~~of Common Stock~~ (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate ~~conversion price of the convertible securities so offered for subscription~~ conversion, exchange or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesexercise price) would purchase at the Current Market Price ~~per share of Common Stock~~ on such ~~record~~ date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the ~~Company~~ Issuer for such rights or warrants and any amount payable on exercise or ~~conversion~~ exchange thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4d) If In case the ~~Company shall make a~~ Issuer shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Issuer or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding (xi) any ~~issuance of rights for which an adjustment was made pursuant~~ dividends, distributions, rights, warrants, options, other securities or convertible securities referred to ~~Section 4.06(a)(3~~in Sections 13.01(a) or 13.05(c), (yii) any dividends and distributions in connection with a reclassification, change, consolidation, merger, ~~combination~~binding share exchange, ~~liquidation~~sale, ~~dissolution~~transfer, ~~winding up~~lease, ~~sale~~ conveyance or ~~conveyance resulting in a change in the conversion consideration pursuant~~ other disposition to which Section ~~4.10 and~~ 13.06 applies or (ziii) ~~any dividend~~ dividends or ~~distribution~~ distributions paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash) (any of the foregoing hereinafter in this Section 13.05(d) called the “~~Distributed~~ Securities”), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the record date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such record ~~date and~~ date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such record date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such~~ the record date of the portion of the ~~Distributed~~ Securities 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 that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Securities such holder would have received had such Noteholder held a number of ~~shares~~ Shares of Common Stock ~~outstanding at~~ equal to Conversion Rate in effect on the ~~close of business on such~~ record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~13.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable record date. If the dividend or distribution requiring an adjustment pursuant to this Section 13.05(d) consists of ~~the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders~~ capital stock of ~~its Common Stock consist of Capital Stock of~~any class or series, or similar equity ~~interests in~~interests, of a Subsidiary or other business unit of the ~~Company~~ Issuer, for purposes of making such adjustment, (i) the ~~“Spinoff Securities”), the Conversion Rate~~ Current Market Price shall be ~~adjusted, unless~~ based on the ~~Company makes an equivalent distribution to the Holders~~ average of the ~~Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed~~ Closing Sale Prices of such securities for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive ten Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which “ex-dividend ~~trading~~ trading” commences for such distribution on ~~the~~ The New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or ~~quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ quoted, and ~~(B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by~~ (ii) the ~~number~~ Fair Market Value of ~~Spinoff Securities~~ such securities shall be determined as provided herein, measured for the same period. Rights or warrants distributed by the Issuer to all or substantially all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Issuer’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of ~~one share~~ future issuances of Common ~~Stock and the denominator of which~~ Stock, shall be ~~the average Closing Price~~ deemed not to have been distributed for purposes of ~~one share of Common Stock over the Spinoff Valuation Period, such~~ this Section 13.05 (and no adjustment to ~~become effective immediately~~ the Conversion Rate under this Section 13.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the ~~opening~~ date of ~~business on~~ this Indenture, are subject to events, upon the ~~fifteenth Trading Day after~~ occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date ~~on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ of the ~~foregoing adjustment elect~~ occurrence of any and each such event shall be deemed to ~~make adequate provision so that each Holder~~ be the date of ~~Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the~~ 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 (5of the type described in the preceding sentence) ~~With~~ with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 ~~any~~ such rights or warrants (~~the “Rights”) that may be issued~~ assuming such holder had retained such rights or ~~distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”~~warrants), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed made to all holders of Common Stock ~~Distributed Securities~~ as ~~provided~~ of the date of such redemption or repurchase, and (2) in the ~~first paragraph~~ case of ~~clause (4)~~ 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 ~~4.06(a), subject to appropriate readjustment~~ 13.05(d) in ~~the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution~~ respect of rights or warrants ~~pursuant~~ distributed or deemed distributed on any Trigger Event to ~~a Rights Plan complying with~~ the ~~requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of~~ extent that such rights or warrants ~~pursuant~~ are actually distributed, or reserved by the Issuer for distribution to ~~this Section 4.06(a). Other than as specified~~ holders of Notes (in ~~this clause (5)~~ an amount per Note equal to the number of ~~this Section 4.06(a), there will not be any adjustment~~ such rights or warrants that shall have been distributed in respect of a number of shares of Common Stock equal to the Conversion Rate as in effect at the ~~result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption~~ times of such ~~Rights~~ Trigger Event) upon conversion by such holders of Notes in accordance with this Article 13. For purposes of this Section 13.05(d) and Section 13.05(a) and (c), any ~~Rights Plan~~ dividend or distribution to which this Section 13.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (to which the ~~termination~~ provisions of Section 13.05(a) or ~~invalidation~~ 13.05(c) or both would apply), shall be deemed instead to be (1) a dividend or distribution of the Securities other than such shares of Common Stock or rights or warrants (and any ~~Rights~~Conversion Rate adjustment required by this Section 13.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 13.05(a) and 13.05(c) with respect to such dividend or distribution shall then be made), except (A) the record date of such dividend or distribution shall be substituted as “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 Section 13.05(a) and 13.05(c), respectively, 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 13.05(a). (6e) If In case the ~~Company~~ Issuer shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~Issuer, whether voluntary or involuntary, (y) any cash dividend distributed on the Common Stock to the extent the aggregate of all cash dividends per share of Common Stock in any Fiscal Quarter does not exceed $0.30 (the “dividend threshold amount”) and (z) any dividend or distribution in connection with a reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or other disposition to which Section 13.06 applies), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect ~~immediately prior to the close of business~~ on the applicable record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of~~ on such record date minus the ~~Common Stock on the Determination Date and~~ dividend threshold amount; and (ii) the denominator of which shall be the Current Market Price ~~per share of~~ on such record date minus the ~~Common Stock on the Determination Date less the~~ full amount of ~~such Triggering Distribution~~ cash distributed in the applicable to Fiscal Quarter in respect of one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which the Triggering Distribution is paid~~record date. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 ~~divided~~ dividend or distribution had not been declared. The “dividend threshold amount” shall be subject to adjustment as of any date on which the Conversion Rate of the Notes is adjusted pursuant to this Section 13.05 (other than on account of any adjustment to the Conversion Rate as a result of the provisions set forth in this Section 13.05(e)). The dividend threshold amount, as adjusted, will equal the dividend threshold amount immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the dividend threshold amount adjustment and (ii) the denominator of which is the Conversion Rate as so adjusted. (7f) ~~If any~~ In case a tender or exchange offer made by the ~~Company~~ Issuer or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value Subsidiary of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iIssuer for a

Appears in 1 contract

Sources: Indenture (United Dominion Realty Trust Inc)

Adjustment of Conversion Rate. ~~(a) The~~ Each time that the Conversion Price is adjusted by the Issuer pursuant to this Section 14.4, the Conversion Rate shall be adjusted (rounded to the nearest one-ten thousandth) by multiplying the Conversion Rate by a fraction, the numerator of which is the Conversion Price immediately prior to such adjustment and the denominator of which is the Conversion Price as so adjusted. The Conversion Price shall be subject to adjustments, calculated by the Issuer, from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common ~~Stock~~ Shares in ~~shares of~~ Common ~~Stock~~Shares, the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be ~~increased so that the same shall equal the rate determined~~ reduced by multiplying ~~the~~ such Conversion ~~Rate in effect immediately prior to such record date~~ Price by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the ~~sum of the~~ number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the close of business on the Record Date (as defined in Section 14.4(g)) fixed for such ~~record date plus~~ determination, and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~distribution. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ reduction shall become effective immediately after ~~such record date. For~~ the ~~purpose~~ opening of ~~this Section 4.06 and otherwise in this Indenture,~~ business on the ~~number of shares of Common Stock at any time outstanding shall not include shares held in~~ day following the ~~treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 14.4(a) is declared but not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to the Conversion ~~Rate that~~ Price which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide its~~ outstanding Common ~~Stock~~ Shares shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ Common ~~Stock into a smaller number of shares~~Shares, the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately reduced, and conversely, in case outstanding Common Shares shall be combined into a smaller number of Common Shares, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 14.4(d)) to all holders of its outstanding Common ~~Stock~~ Shares entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common ~~Stock~~Shares) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~14.4(g)) on the ~~record date~~ Record Date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion ~~Rate in effect immediately prior thereto~~ Price shall be adjusted so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion ~~Rate~~ Price in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record date~~ Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and (ii) the denominator of which shall be the number of Common Shares outstanding on the close of business on the Record Date plus the total number of additional Common Shares so offered for subscription or ~~purchase,~~ purchase (or into which ~~shall be determined by multiplying~~ the ~~number of shares of Common Stock issuable upon conversion of such~~ convertible securities ~~by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date~~so offered are convertible). Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common ~~Stock~~Shares) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion ~~Rate~~ Price shall be readjusted to the Conversion ~~Rate that~~ Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into Common Shares) actually delivered. If In the event that such rights or warrants are not so issued, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate that~~ Price which would then be in effect if ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of shares of~~ such Common ~~Stock so offered~~Shares, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of ~~Directors~~Directors of the Issuer. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common ~~Stock~~ Shares any class of ~~shares of its~~ Capital ~~Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities)~~ Shares of the Company (other than any dividends or distributions to which Section 14.4(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (x1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.4(c), (y2) any stock, securities or other property or assets (including cash) distributed as dividends ~~and~~ or distributions in connection with a reclassification, change, ~~consolidation,~~ merger, combination, ~~liquidation~~sale, ~~dissolution~~conveyance, ~~winding up, sale~~ consolidation or ~~conveyance resulting in a change in the conversion consideration pursuant~~ statutory share exchange to which Section ~~4.10~~ 14.11 hereof applies and (z3) any ~~dividend~~ dividends or ~~distribution~~ distributions paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6))~~ cash, (the securities described in foregoing are hereinafter in this Section 14.4(d) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes second paragraph of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”14.4(d), the Conversion ~~Rate~~ Price shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ reduced so that the same shall be equal to the ~~rate~~ price determined by multiplying the Conversion ~~Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing~~ Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the ~~record date for~~ Record Date (as defined in Section 14.4(g)) with respect to such ~~Triggering Distribution (a “Determination Date”)~~ distribution by a fraction, : (i) the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator~~ of which shall be the Current Market Price ~~per share~~ (determined as provided in Section 14.4(g)) on such date less the fair market value (as determined by the Board of Directors of the ~~Common Stock~~ Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer) on such date of the ~~Determination Date less~~ portion of the ~~amount of such Triggering Distribution~~ securities so distributed applicable to one ~~share of~~ Common ~~Stock~~ Share (determined on the basis of the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding ~~at the close of business~~ on the ~~Determination~~ Record Date), and (ii) the denominator of which shall be such ~~increase to~~ Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the ~~date on which~~ Record Date. However, in the ~~Triggering Distribution is paid. If~~ event that the ~~amount~~ then fair market value (as so determined) of ~~such Triggering Distribution~~ the portion of the securities so distributed applicable to one Common Share is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion of a Note (or any portion thereof) the amount of ~~cash so distributed that~~ securities such Holder would have received had such Holder converted ~~each Security on~~ such ~~Determination~~ Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate that~~ Price which would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If the Board of Directors of the Issuer determines the fair market value of any distribution for purposes of this Section 14.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 14.4(g) to the extent possible, unless the Board of Directors of the Issuer in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. For purposes of any calculation under this Section 14.4(d) in which the distribution consists of Capital Shares of one or more of the Company’s Subsidiaries or other business units, if such Capital Shares are listed or quoted on the New York Stock Exchange or other national or regional exchange or market and Closing Prices are available during the relevant calculation period, the fair market value of such Capital Shares so listed or quoted shall be the average of the daily Closing Prices per share or unit of such Capital Shares for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the “ex” date (as defined in Section 14.4(g) hereof) with respect to the distribution requiring such computation. Rights or warrants distributed by the Company to all holders of Common Shares entitling the holders thereof to subscribe for or purchase the Company’s Capital Shares (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 14.4(d) (and no adjustment to the Conversion Price under this Section 14.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Price under this Section 14.4(d): (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Shares with respect to such rights or warrant (assuming such holder had retained such rights or warrants), made to all holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 14.4(d) and Sections 14.4(a), 14.4(b) and 14.4(c), any dividend or distribution to which this Section 14.4(d) is applicable that also includes Common Shares, a subdivision or combination of Common Shares to which Section 14.4(c) applies, or rights or warrants to subscribe for or purchase Common Shares to which Section 14.4(c) applies (or any combination thereof), shall be deemed instead to be: (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such Common Shares, such subdivision or combination or such rights or warrants to which Sections 14.4(a), 14.4(b) and 14.4(c) apply, respectively (and any Conversion Price reduction required by this Section 14.4(d) with respect to such dividend or distribution shall then be made), immediately followed by (2) a dividend or distribution of such Common Shares, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 14.4(a), 14.4(b) and 14.4(c) with respect to such dividend or distribution shall then be made), except: (A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution,” “Record Date fixed for such determinations” and “Record Date” within the meaning of Section 14.4(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 14.4(b), and (z) as “the date fixed for the determination of shareholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 14.4(c), and (B) any Common Shares 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 14.4(a) and any reduction or increase in the number of Common Shares resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (7e) ~~If any tender offer made by~~ In case the Company shall, by dividend or ~~any~~ otherwise, distribute to all holders of its ~~Subsidiaries for all~~ Common Shares cash (excluding any cash that is distributed upon a reclassification, change, merger, combination, sale, conveyance, consolidation or ~~any portion~~ statutory share exchange to which Section 14.11 hereof applies or as part of ~~Common Stock shall expire~~a distribution referred to in Section 14.4(d) hereof), ~~then~~then and in each such case, if immediately after the ~~tender offer shall require the payment to stockholders~~ close of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to~~ Record Date of such ~~tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~distribution, the Conversion ~~Rate~~ Price shall be ~~increased~~ reduced so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion ~~Rate~~ Price in effect immediately prior to the close of business on ~~the Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum~~ Current Market Price on such Record Date less the full amount of such distribution, in each case, applicable to one Common Share, and (Aii) the ~~Fair~~ denominator of which shall be equal to the Current Market ~~Value~~ Price on the Record Date. However, as determined by the Board of Directors of the ~~aggregate consideration payable~~ Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer, the Issuer may in lieu of the foregoing adjustment, make adequate provision so that each Holder shall have the right to ~~stockholders~~ receive upon conversion of a Note (or any portion thereof) the amount of cash such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. (f) In case a tender or exchange offer made by the Company or any of its subsidiaries to all holders of Common Shares for all or any portion of the Common Shares shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of ~~all shares validly tendered~~ Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors of the Issuer, whose determination shall be conclusive and ~~not withdrawn~~ set forth in a Board Resolution of the Issuer), as of the ~~Expiration Time~~ expiration of such tender or exchange offer that exceeds the Current Market Price (determined as provided in Section 14.4(g)) as of the last time (the ~~shares deemed so accepted, up to any such maximum, being referred to as the~~ “~~Purchased Shares~~Expiration Time”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such itenders or exchanges could have been made

Appears in 1 contract

Sources: Indenture (Lions Gate Entertainment Inc)

Appears in 1 contract

Sources: Indenture (Williams Companies Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the sum of the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date plus~~ determination and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution~~ distribution, and the denominator of which ~~the denominator~~ shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.5(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock,~~ any class of capital stock of the Company (other than ~~Common Stock,~~ any dividends or distributions to which Section 15.5(a) applies) or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.5(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~15.5(a) (any of the ~~“Distributed~~ foregoing hereinafter in this Section 15.5(d) called the "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date (as defined in Section 15.5(h)(4) for such ~~distribution~~distribution of the Securities)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, the numerator of which shall be the ~~numerator~~ Current Market Price per share of the Common Stock and the denominator of which shall be the Current Market Price per share of the Common Stock on such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock, such increase to become effective immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price of the Common Stock on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~15.5(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock of~~the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.5 (and no adjustment to the Conversion Rate under this Section 15.5 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.5(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of 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 ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 15.5 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 15.5(d) in ~~effect~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.5(d) and Sections 15.5(a) and (b), any dividend or distribution to which this Section 15.5(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of 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 increase required by this Section 15.5(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate increase required by Sections 15.5(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the ~~New York Stock Exchange~~meaning of Sections 15.5(a) and (b), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 15.5(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 15.5(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.5(h)) during the ten Trading Days (as defined in Section 15.5(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, the numerator of which shall be such Current Market Price ~~per share~~ of the Common Stock ~~on the Determination Date~~ and the denominator of which shall be the Current Market Price ~~per share~~ of the Common Stock on the ~~Determination Date~~ record date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such increase to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided, however, that in the ~~Triggering Distribution is paid. If~~ event the ~~amount~~ portion of ~~such Triggering Distribution~~ the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share~~ of the Common Stock on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~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 ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 15.5(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.5(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “"Expiration ~~Date”~~Time") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Current Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration ~~Date~~Time, ~~such i~~the Conversion Rate shall be increased to equal the rate determined by multiplying the Conversion Rate in effect immediately

Appears in 1 contract

Sources: Indenture (Brocade Communications Systems Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a ~~dividend~~ dividend, or make a ~~distribution to all holders~~ distribution, payable exclusively in Common Shares or other capital stock of ~~outstanding~~ the Company on its Common ~~Stock in shares of Common Stock~~Shares, the Conversion ~~Rate~~ Rate, as in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other ~~distribution~~ distribution, shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate ~~in effect immediately prior to such record date~~ by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of the~~ number of ~~shares of~~ Common ~~Stock~~ Shares outstanding at the close of business on the date fixed for such ~~record date plus~~ determination, and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the Business Day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Companydetermination. The Company will not pay any dividend or make any distribution on Common ~~Stock~~ Shares held in ~~the~~ treasury of by the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value~~ . (~~as so determined~~b) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by In case the Company shall issue rights or warrants to all holders of ~~its~~ the outstanding Common ~~Stock consist of Capital Stock of,~~ Shares entitling them to subscribe for or ~~similar equity interests in,~~ purchase Common Shares at a ~~Subsidiary or other business unit of~~ price per share less than the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect Market Price per Common Share on the ~~record~~ date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such ~~distribution~~ rights or warrants, the Conversion Rate in effect at the opening of business on the date fixed for such determination shall be increased by dividing such Conversion Rate by a fraction, , (i) the numerator of which shall be the ~~sum of (A) the average Closing Price of one share~~ number of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock Shares outstanding at the close of business on the ~~Determination Date)~~date fixed for such determination plus the number of Common Shares which the aggregate offering price of the total number of Common Shares so offered for subscription or purchase would purchase at such Market Price, and (ii) the denominator of which shall be the number of Common Shares outstanding at the close of business on the date fixed for such ~~increase to~~ determination plus the total number of additional Common Shares so offered for subscription or purchase at such below Market Price. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately ~~prior to~~ after the opening of business on the ~~day~~ Business Day following the date fixed for such determination. The Company shall not issue any such rights or warrants in respect of Common Shares held in treasury by the Company. To the extent that Common Shares 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 ~~which~~ the ~~Triggering Distribution is paid~~basis of delivery of only the number of Common Shares actually delivered. If ~~the amount of~~ such ~~Triggering Distribution is equal to~~ rights or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend or distribution is warrants are not so ~~paid or made~~issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Market Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Trustees. (c) In case the Company shall (1) subdivide or split the outstanding Common Shares into a greater number of Common Shares or (2) combine the outstanding Common Shares into a smaller number of Common Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or split becomes effective shall be proportionately increased, and, conversely, in case outstanding Common Shares shall be combined into a smaller number of Common 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, split or combination becomes effective. (d) In case the Company shall distribute to all holders of its Common Shares evidences of its assets, debt securities or rights or warrants to purchase its securities (but excluding any rights or warrants referred to in Section 14.05(b), any regular dividend paid exclusively in cash and any dividend or distribution referred to in Section 14.05(a)), and if such distributions, aggregated on a rolling twelve-month basis, have a per share value exceeding 15% of the Market Price of the Common Shares on the Trading Day immediately preceding the date on which such distribution is declared, the Conversion Rate shall be adjusted by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such distribution by a fraction, (i) the numerator of which shall be the Market Price on the date fixed for such determination less the then fair market value (as determined by the Board of Trustees, whose determination shall be conclusive and described in a board resolution) on such date of the portion of the evidences of assets, debt securities or rights or warrants to purchasing its securities so distributed applicable to one Common Share, and (ii) the denominator of which shall be the Market Price on such date for determination, such adjustment to become effective immediately prior to the opening of business on the Business Day following the date fixed for the determination of shareholders entitled to receive such distribution; provided, however, that in the event that the Company makes a distribution to all holders of its Common Shares consisting of capital stock of, or similar equity interest in, a subsidiary or other business unit of the Company (the "SPIN-OFF SHARES"), the Conversion Rate shall be adjusted by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such distribution by a fraction of which the numerator shall be the Spin-off Market Price per Common Share on the date fixed for such determination less the Spin-off Market Price per Spin-off Share on such date and the denominator shall be the Spin-off Market Price per Common Share, such adjustment to become effective 10 Trading Days after the effective date of such distribution of the Spin-off Shares. In any case in which this Section 14.05(d) is applicable, Section 14.05(a) and (b) shall not be applicable. Notwithstanding the foregoing, if (a) the fair market value (as determined by the Board of Trustees, whose determination shall be conclusive and described in a board resolution) per Common Share of the assets, debt securities or rights or warrants to purchase the Company's securities distributed to shareholders equals or exceeds the Market Price of the Common Shares on the date fixed for the determination of the shareholders entitled to receive such distribution, or (b) the Market Price of the Common Shares exceeds the fair market value (as determined by the Board of Trustees, whose determination shall be conclusive and described in a board resolution) per Common Share of the assets, debt securities or rights or warrants so distributed by less than $1.00, no adjustment in the Conversion Rate shall be made, but each holder shall be entitled to receive upon conversion, in addition to the Common Shares, the kind and amount of assets, debt securities or rights or warrants comprising the distribution that such holder would have received if such holder had converted its Notes immediately prior to the date fixed for the determination of the shareholders entitled to receive such distribution. If such dividend or distribution is not so paid or made, the applicable Conversion Rate shall again be adjusted to be the applicable Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (7e) ~~If any tender offer made by~~ In case the Company shall increase the regular common dividend distribution payable on Common Shares above $0.43 on a quarterly basis (appropriately adjusted for any share dividends on or ~~any~~ subdivisions or combinations of ~~its Subsidiaries for all or any portion of~~ the Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”Shares), the Conversion Rate shall be increased 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 ~~Expiration Date~~ date fixed for determination of the shareholders entitled to receive such distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum~~ Market Price per Common Share on the date fixed for such determination less the amount of cash in excess of $0.43 (Aappropriately adjusted for any share dividends on or subdivisions or combinations of the Common Shares) on a quarterly basis so distributed during such quarter applicable to one Common Share; and (ii) the ~~Fair~~ denominator of which shall be equal to the Market ~~Value~~ Price per Common Share on such date for determination. In the event that such dividend or distribution is not so paid or made, the applicable Conversion Rate shall again be adjusted to be the applicable Conversion Rate that would then be in effect if such dividend or distribution had not be declared. (f) In case a tender or exchange offer made by the Company or any subsidiary of the ~~aggregate consideration payable~~ Company for all or any portion of the Common Shares 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 the tender or exchange offer) of Purchased Shares) of an aggregate consideration having a fair market value (as determined by the Board of Trustees, whose determination shall be conclusive and described in a board resolution) (such combined amount payable (assuming the acceptance, up to any maximum specified in the terms of the tender or exchange offer, of Purchased Shares), the "OFFER AGGREGATE VALUE"), which exceeds the Market Price multiplied by the number of Common Shares outstanding (including any tendered or exchanged shares), each as of the last time (the "EXPIRATION TIME") tenders could have been made pursuant to such tender or exchange offer (as it may be amended), 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 dividing the Conversion Rate immediately prior to the close of business as of the Expiration Time by a fraction, (i) the numerator of which shall be equal to (A) the product of (1) the Market Price as of the Expiration Time multiplied by (2) the number of Common Shares outstanding (including any tendered shares) as of the Expiration Time less (B) the Offer Aggregate Value, and (ii) the denominator of which shall be equal to the product of (A) the Market Price as of the Expiration Time multiplied by (B) the number of Common Shares 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~~ "PURCHASED SHARES"). If the Company is obligated to purchase Common Shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. If the application of this Section 14.05(f) would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 14.05(f). (g) The reclassification of Common Shares into securities other than Common Shares (other than any reclassification upon an event to which Section 14.06 applies) shall be deemed to involve (a) a distribution of such securities other than Common Shares to all holders of Common Shares (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of shareholders entitled to receive such distribution" and the "date fixed for such determination" within the meaning of Section 14.05(d)), and (b) a subdivision or combination, as the case may be, of the number of Common Shares outstanding immediately prior to such reclassification into the number of Common 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, split or combination becomes effective" within the meaning of Section 14.05(c)). (h) Notwithstanding the foregoing provisions of Section 14.05, no adjustment shall be made thereunder, nor shall an adjustment be made to the ability of a holder of a Note to convert, for any distribution described therein if the holder will otherwise participate in the distribution without conversion of such holder's Notes. (i) In addition to these adjustments, the Company may increase the applicable Conversion Rate as the Board of Trustees considers advisable to avoid or diminish any income tax to holders of Common Shares or rights to purchase our Common Shares resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. The Company may also, from time to time, to the extent permitted by applicable law, increase the applicable Conversion Rate by any amount for any period of at least 20 days if the Board of Trustees has determined that such increase would be in the Company's best interests, which determination shall be conclusive. The Company shall give holders of Notes at least 15 days' notice of such an increase in the applicable Conversion Rate. (j) No adjustment to the Conversion Rate shall be required: (i) upon the issuance of any Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Shares under any plan (including the Company's existing Dividend Reinvestment and Share Purchase Plan); (ii) upon the issuance of any Common Shares or options or rights to purchase those Common Shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries; (iii) upon the issuance of any Common Shares pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in (ii) above and outstanding as of the date the Notes were first issued; (iv) for a change in the par value of the Common Shares”; or (v) for accrued and unpaid Interest. In addition, if the Company were to implement a rights plan providing that, upon conversion of the Notes, the holders of such Notes will receive, in addition to the Common Shares issuable upon such conversion, the rights related to such Common Shares, there shall not be required any adjustment to the conversion privilege or Conversion Rate as a result of: (A) the issuance of the rights; (B) the ~~product~~ distribution of separate certificates representing the rights; (C) the exercise or redemption of such rights in accordance with any rights agreement; or (D) the termination or invalidation of the ~~number of shares of Common Stock outstanding~~ rights. (~~less any Purchased Shares and excluding any shares held~~ k) No adjustment in the ~~treasury of the Company) at the Expiration Time and the Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which~~ Conversion Rate shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, required unless such iadjus

Appears in 1 contract

Sources: Indenture (Town & Country Trust)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 16.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock shares (excluding any distribution in connection with the liquidation, dissolution or winding up of ~~shares~~ the Company, whether voluntary or involuntary) of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~16.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~16.05(a) (any of the foregoing hereinafter in this Section 16.05(d)) (called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided that if the then fair market value (as ~~determined by reference to the Current Market Price of the Distributed Securities~~so determined) ~~on such record date~~ of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~16.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Record Date. If the dividend or distribution requiring an adjustment pursuant to this clause (d) consists of capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company, for purposes of making such adjustment, (i) the Current Market Price shall be determined as of the date (the “Ex-Dividend Date”) on which “ex-dividend trading” commences for such distribution on the principal national or regional exchange, the NASDAQ National Market or other market on which such securities are then listed or quoted, based on the average of the Closing Sale Prices of the Common ~~Stock~~Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date and (ii) the Fair Market Value of such dividend or distribution shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the closing sale prices of those securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock 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 16.05 (and no adjustment to the Conversion Rate under this Section 16.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 16.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 16.05 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 ~~in effect on~~ shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 16.05(d) and Section 16.05(a) and (b), any dividend or distribution to which this Section 16.05(d) is applicable that also includes shares of Common Stock, or such 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 ~~record~~ 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 16.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 16.05(a) and 16.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution”, ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ “the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such ~~distribution on~~ determination” within the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”meaning of Section 16.05(a) and 16.05(b) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed “outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination” within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 16.05(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividends per share of Common Stock in any Fiscal Quarter does not exceed 1.25% of the arithmetic average of the Closing Sale Prices during the ten Trading Days immediately prior to the date of declaration of such dividend, calculated at the time the declaration of each dividend or distribution during such Fiscal Quarter, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the record date for~~ such ~~Triggering Distribution (a “Determination Date”)~~ Record Date by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination~~ such Record Date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 16.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 16.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) that as of the last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ifracti

Appears in 1 contract

Sources: Indenture (Durect Corp)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If the Company shall pay a dividend or make a distribution to all or substantially all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all or substantially all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all or substantially all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the ~~fair market value~~ Fair Market Value (as determined by reference to the Current Market Price of the Distributed Securities, or in the absence of a Current Market Price of the Distributed Securities, the Fair Market Value thereof) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all or substantially all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this ~~Section 4.06(a),~~ Section (a) subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all or substantially all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ibut

Appears in 1 contract

Sources: Indenture (General Cable Corp /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments, calculated by the Company, from time to time ~~by the Company~~ as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination and the total number of shares constituting such dividend or ~~distribution is made and~~ other distribution, and (ii) the denominator of which shall ~~become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture,~~ be the number of shares of Common Stock outstanding at ~~any time outstanding~~ the close of business on the Record Date (as defined in Section 12.4(g)) fixed for such determination. Such increase shall ~~not include shares held in~~ become effective immediately after the ~~treasury~~ opening of business on the ~~Company. The Company will not pay any dividend or make any distribution on Common Stock held in~~ day following the ~~treasury of the Company~~Record Date. If any dividend or distribution of the type described in this ~~clause~~ Section 12.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the ~~Company shall subdivide its~~ outstanding shares of Common Stock shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall to become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 12.4(d)) to all or substantially all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined~~ defined in ~~accordance with clause (8) of this~~ Section ~~4.06(a~~12.4(g)) on the ~~record date~~ Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record date~~ Record Date by a ~~fraction~~ fraction: (i) the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible), and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date Record Date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If 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~~ which would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness or other assets (including securities)~~ capital stock of the Company (other than any dividends or distributions to which Section 12.4(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (x1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~12.4(c), (y2) ~~dividends and distributions~~ any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination~~, liquidation, dissolution, winding up~~, sale or conveyance ~~resulting in a change in the conversion consideration pursuant~~ to which Section ~~4.10~~ 12.11 hereof applies and (z3) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant to Section 4.06(a)(6))~~ (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 12.4(d) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ second succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 12.4(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ (determined as provided in Section 12.4(g)) on such ~~record date and~~ date, and (ii) the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price ~~per share~~ on such ~~record~~ date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors (except as described below), whose determination shall be conclusive and set forth in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at on the ~~close of business on such record date~~Record Date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the ~~record date for~~ opening of business on the ~~determination~~ day following the Record Date, or in the case of ~~stockholders entitled~~ a Spin-off, immediately prior to ~~receive such distribution~~the opening of business on the day following the last Trading Day of the Measurement Period. In However, 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the ~~Distributed Securities~~ securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash ~~so distributed that~~ or other assets, including securities, such Holder would have received had such Holder converted ~~each~~ such Security on (or portion thereof) immediately prior to such ~~Determination~~ 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~~ which would then be in effect if such ~~divided~~ dividend or distribution had not been declared.. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 12.4(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 12.4(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. In the event the Company distributes shares of capital stock of a Subsidiary or other business unit of the Company, the Conversion Rate will be adjusted, if at all, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 12.4(g)) with respect to such distribution by a fraction: (7i) ~~If any tender offer made~~ the numerator of which shall be the Current Market Price (determined as described below) on such date plus the fair market value on such date of the portion of the shares of capital stock of such Subsidiary or other business unit of the Company so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and (ii) the denominator of which shall be such Current Market Price on such date (determined as described below). 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 ten (10) consecutive Trading Days commencing on and including the fifth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”) and the Current Market Price shall be calculated over the same Measurement Period; provided, however, 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 for the Common Stock on the same Trading Day. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or ~~any~~ purchase shares of ~~its Subsidiaries for all~~ the Company’s capital stock (either initially or ~~any portion~~ 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 ~~expire~~be deemed not to have been distributed for purposes of this Section 12.4(d) (and no adjustment to the Conversion Rate under this Section 12.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, ~~then~~upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, if evidences of indebtedness or other assets or entitle the ~~tender offer~~ holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall ~~require~~ be deemed to be the ~~payment~~ date of issuance and record date with respect to ~~stockholders~~ a new right or warrant (and a termination or expiration of ~~consideration~~ the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 12.4(d): (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 of Common Stock ~~having a Fair Market Value~~ with respect to such rights or warrant (~~determined as provided below) that exceeds the Closing Price per share~~ assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which this Section 12.4(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12.4(c) applies (or any combination thereof), shall be deemed instead to be: (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and any Conversion Rate increase required by this Section 12.4(d) with respect to such dividend or distribution shall then be made), immediately followed by (2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or distribution shall then be made), except: (A) the Record Date of such dividend or distribution shall be substituted as (x) ”the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determination” and “Record Date” within the meaning of Section 12.4(a), (y) ”the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12.4(b), and (z) ”the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “Record Date,” “the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such date fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 12.4(c), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the ~~Trading Day next succeeding~~ Record Date fixed for such determination” within the ~~last date~~ meaning of Section 12.4(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. (e) In case the ~~“Expiration Date”~~Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 hereof applies or as part of a distribution referred to in Section 12.4(d) ~~tenders could have been made pursuant to~~ hereof), then and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date, the Conversion Rate shall be increased 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 Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum of (A) the Fair~~ Current Market ~~Value of the aggregate consideration payable to stockholders based~~ Price on the ~~acceptance~~ Record Date, and (~~up to any maximum specified in the terms of the tender offer~~ii) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be equal to the ~~product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing~~ Current Market Price ~~per share of the Common Stock~~ on ~~the Trading Day next succeeding the Expiration Date,~~ such idate less an amount equal to the

Appears in 1 contract

Sources: Indenture (Cv Therapeutics Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the ~~Company~~ Company, without duplication, as follows: (1) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 as if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights or warrants (other than rights or warrants referred to in Section 4.06(a)(4)) to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock so offered for subscription or purchase (or into or for which the convertible or exchangeable securities so offered are ~~convertible~~convertible or exchangeable) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible or exchangeable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion or exchange of such convertible or exchangeable securities by the ~~Conversion Price~~ conversion price per share of Common Stock pursuant to the terms of such convertible or exchangeable securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into or exchangeable for Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~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 (or securities convertible into or exchangeable for Common Stock) actually delivered. If 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 the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities)~~ Stock of the Company (other than any dividends or distributions to which Section 4.06(a)(1) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (x) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section 4.06(a)(3), (y) ~~dividends and distributions~~ any stock, securities or other property or assets (including cash) distributed in connection with a reclassification, change, merger, consolidation, ~~merger~~statutory share exchange, combination, ~~liquidation~~sale, ~~dissolution, winding up, sale~~ conveyance or ~~conveyance resulting in a change in the conversion consideration pursuant~~ lease to which Section 4.10 hereof applies, and (z) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant to Section 4.06(a)(6))~~ (the securities described in foregoing clauses (x), (y) and (z) hereinafter in this Section 4.06(a)(4) called the “~~Distributed Securities~~securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ third succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 4.06(a)(4)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to ~~such~~ the close of business on the record date (as defined in Section 4.06(a)(8)(C)) with respect to such distribution by a ~~fraction~~ fraction, the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ (determined as provided in Section 4.06(a)(8)) on such ~~record date~~ date, and the denominator of which ~~the denominator~~ shall be ~~the~~ such Current Market Price ~~per share~~ on such ~~record~~ date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors (except as set forth in this Section), whose determination shall be conclusive and set forth in a Board Resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ shares of capital stock, evidences of indebtedness, cash or other assets, including securities, so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding at on the ~~close of business on such~~ record date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the record ~~date for~~ date, or in the ~~determination~~ case of ~~stockholders entitled~~ a Spin-off (as set forth in this Section), immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of shares of capital stock, evidences of indebtedness, cash or other assets, including securities, such ~~distribution~~Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such record date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect as if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section 4.06(a)(4) by reference to the actual or when issued trading market for any ~~securities~~securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 4.06(a)(8) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the ~~Common Stock~~Holder. ~~Notwithstanding~~ In the ~~foregoing, if the securities distributed by~~ event the Company ~~to all holders~~ distributes shares of ~~its Common Stock consist~~ capital stock of ~~Capital Stock of, or similar equity interests in,~~ a Subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, the Conversion Rate ~~shall~~ will be adjusted, ~~unless the Company makes an equivalent distribution to the Holders of the Securities~~if at all, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date ~~for~~ (as defined in Section 4.06(a)(8)) with respect to such ~~Triggering Distribution (a “Determination Date”)~~ distribution by a fraction, (i) the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator~~ of which shall be the Current Market Price ~~per share~~ (determined as set forth in this Section) on such date plus the fair market value on such date of the ~~Common Stock on~~ portion of the ~~Determination Date less the amount~~ shares of capital stock of such ~~Triggering Distribution~~ Subsidiary or other business unit of the Company so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of the Common Stock outstanding on the record date), and (ii) the denominator of which shall be such Current Market Price on such date (determined as set forth in this Section). 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, that are or when issued will be traded or quoted on any national securities exchange or other market (a “Spin-off”), the fair market value of the securities to be distributed shall equal the average of the daily Closing Price of such securities for the 10 consecutive Trading Days commencing on and including the fifth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”) and the Current Market Price shall be calculated over the same Measurement Period; provided, however, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, the 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 for the Common Stock on the same Trading Day. 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 4.06(a)(4) (and no adjustment to the Conversion Rate under this Section 4.06(a)(4) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 4.06(a)(4): (A) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (B) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 4.06(a)(4) and Sections 4.06(a)(1), 4.06(a)(2) and 4.06(a)(3), any dividend or distribution to which this Section 4.06(a)(4) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 4.06(a)(2) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 4.06(a)(3) applies (or any combination thereof), shall be deemed instead to be: (A) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 4.06(a)(1), 4.06(a)2 and 4.06(a)(3) apply, respectively (and any Conversion Rate increase required by this Section 4.06(a)(4) with respect to such dividend or distribution shall then be made); immediately followed by (B) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 4.06(a)(1), 4.06(a)(2) and 4.06(a)(3) with respect to such dividend or distribution shall then be made); except: (i) the record date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “record date fixed for such determination” and “record date” within the meaning of Section 4.06(a)(1), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 4.06(a)(2), and (z) “the record date fixed for the determination of stockholders entitled to receive such rights or warrants,” such “record date,” “the record date fixed for the determination of stockholders entitled to receive such rights or warrants” and “such date fixed for the determination of stockholders entitled to receive such rights or warrants” within the meaning of Section 4.06(a)(3); and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the ~~Determination Date),~~ record date fixed for such ~~increase to become effective immediately prior to~~ determination” within the ~~opening~~ meaning of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”Section 4.06(a)(1) and ~~(B) the product of~~ any reduction or increase in 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iresulting fro

Appears in 1 contract

Sources: Supplemental Indenture (Vertex Pharmaceuticals Inc / Ma)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 5.07(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 sixty (60) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market~~ Closing Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the record date for the ~~determination of stockholders entitled to receive such rights or warrants~~distribution, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase; and (ii) the denominator of which shall be the sum of the number of shares of Common Stock outstanding at the close of business on ~~such~~ the record date ~~plus the number~~ fixed for determination of ~~additional shares of Common Stock offered (~~stockholders entitled to receive such rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market~~ Closing Price ~~per share~~ as of ~~Common Stock on~~ the date immediately preceding the record date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market~~ Closing Price ~~per share of Common Stock~~ on the record date for the distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (A) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock, or~~ evidences of ~~Indebtedness~~ indebtedness or ~~other assets (~~assets, including securities~~) of the Company (~~, but excluding (x) any dividend or distribution or issuance ~~of rights for which an adjustment was made pursuant~~ referred to in Section ~~4.06(a)(3),~~ 5.07(a) or (b) and (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash ~~for which an adjustment was made pursuant to~~ (any of the foregoing hereinafter in this Section ~~4.06(a)(6)~~5.07(d) (called the ~~“Distributed Securities”~~"DISTRIBUTED ASSETS OR SECURITIES"), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Regular Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Regular Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Regular Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Regular Record Date of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common ~~Stock (determined on~~ Stock, such adjustment to become effective immediately prior to the ~~basis of the number of shares of Common Stock outstanding at the close~~ opening of business on the day following such ~~record date)~~Regular Record Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~5.07(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 on the ~~Common Stock~~applicable Regular Record Date. ~~Notwithstanding the foregoing, if the securities~~ 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 5.07 (and no adjustment to the Conversion Rate under this Section 5.07 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 5.07(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of the 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 5.07 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 thereof, the Conversion Rate shall be readjusted as if such expired or terminated rights and warrants had not been issued. For purposes of this Section 5.07(d) and Section 5.07(a) and (b), any dividend or distribution to which this Section 5.07(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock described in Section 5.07(b) (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of assets, debt securities 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 5.07(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 5.07(a) and 5.07(b) with respect to such dividend or distribution shall then be made), except (A) the Regular 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 Section 5.07(a) and 5.07(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 5.07(a). (B) If the Company pays a dividend or makes a distribution to all holders of its Common Stock ~~consist~~ consisting of ~~Capital Stock of~~capital stock of any class or series, or similar equity ~~interests in~~interests, of or relating to a Subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Regular Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which ex"EX-~~dividend trading~~ DIVIDEND TRADING" commences for such dividend or distribution on ~~the~~ The New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or quoted (~~such consecutive Trading Day period shall be defined as~~ the ~~“Spinoff Valuation Period”~~"EX-DIVIDEND TIME") ~~and~~ plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ fair market value of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock for which this Section applies (which shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the Closing Prices of those securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time); and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Time, such adjustment to become effective immediately prior to the opening of business on the day following fifteenth Trading Day after the ~~date on which ex~~Ex-~~dividend trading commences; provided, however, that the Company may~~ Dividend Time. As used in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this ~~Indenture (each a “Rights Plan”~~Section 5.07(d)(B), ~~in lieu of~~ the "Closing Price" for any ~~adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive,~~ securities distributed with respect to the ~~shares of~~ Common Stock ~~issued upon conversion,~~ shall be determined in the ~~Rights described therein~~ same manner (~~whether or not the Rights have separated from the Common Stock at the time of conversion), subject~~ to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities extent possible) as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the ~~immediately preceding sentence~~ definitions of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment "Closing Price" except that references to the ~~Conversion Rate as~~ term "Common Stock" in such definition shall be replaced with "the ~~result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights~~ distributed securities referred to in ~~accordance with any Rights Plan or the termination or invalidation of any Rights~~Section 5.07(d)(B)". (6e) If In case the Company shall, by dividend or otherwise, ~~at any time distribute (a “Triggering Distribution”)~~ make distributions consisting exclusively of cash to all holders of its Common ~~Stock a payment consisting exclusively of cash (~~Stock, excluding any dividend ~~or distribution~~ in connection with ~~the~~ our liquidation, dissolution or winding up ~~of the Company, whether voluntary~~ or ~~involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business~~ any cash dividend on ~~the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of~~ the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the ~~opening of business on~~ extent that the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of aggregate cash ~~so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock ~~having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date~~ in any quarter does not exceed $0.16 (the ~~“Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended~~"DIVIDEND THRESHOLD AMOUNT") (the ~~last time at which~~ Dividend Threshold Amount shall be subject to adjustment on an inversely proportional basis whenever the Conversion Rate is adjusted, provided that no adjustment will be made to the Dividend Threshold Amount for any adjustment to the Conversion Rate pursuant to this clause (e)) then, in each such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~case, the Conversion Rate shall be increased 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 ~~Expiration Date~~ record date by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of~~ Current Market Price on such record date; and (Aii) the denominator of which shall be the Current Market Price on such record date minus the amount of cash so distributed applicable to one share of Common Stock, such adjustment to be effective immediately prior to the opening of business on the day following the record date; provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such holder would have received had such holder converted each Senior Note on the Regular Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 5.07(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the Dividend Threshold Amount. If an adjustment is required to be made as set forth in this Section 5.07(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the ~~aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms~~ Board of ~~the tender offer~~Directors) ~~of all shares validly tendered and not withdrawn~~ that as of the ~~Expiration Time~~ last time (the ~~shares deemed so accepted, up~~ "EXPIRATION TIME") tenders or exchanges may be made pursuant to ~~any~~ such ~~maximum, being referred to~~ tender or exchange offer (as ~~the “Purchased Shares”~~it may be amended) ~~and (B) 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~~ exceeds the Closing Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iEx

Appears in 1 contract

Sources: First Supplemental Indenture (Fluor Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~14.05(a) (any of the foregoing hereinafter in this Section 14.05(d)) (called the “~~Distributed~~ Securities”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to such distribution))~~ Record Date, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that if the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~14.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, : (i) the numerator of which shall be the sum of (Ax) the average Closing Price of one share of Common Stock over the 10 ten consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on and including the fifth Trading Day after the date on which “ex-dividend ~~trading~~ trading” commences ~~for such distribution~~ on the Common Stock on the New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (~~B) the product of (i~~y) the average Closing Price over the Spinoff Valuation Period of the ~~Spinoff~~ portion of the Securities ~~multiplied by (ii) the number of Spinoff Securities~~ so distributed ~~in respect of~~ applicable to one share of Common ~~Stock and~~ Stock; and (ii) the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 14.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 14.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.05(d) and Section 14.01(a) and (b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Section 14.05(a) and (b) an (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 14.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 14.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 1.25% of the arithmetic average of the Closing Sale Price during the ten Trading Days immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared~~. (7)~~ . If any ~~tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment~~ adjustment is required to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such imade

Appears in 1 contract

Sources: Indenture (Airtran Airways Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 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) below, in case the Company shall issue rights, options or warrants to all or substantially all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock, or securities convertible into 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 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (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 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all or substantially all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section 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 ~~(excluding (x)~~ or any ~~issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~other Person, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) mergers or consolidations to ~~the record date with respect to such distribution~~which Section 10.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 10.04) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of Directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~determination of stockholders entitled to receive such distribution. If ~~the amount of~~ after any such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date~~date fixed for determination, ~~in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that~~ any such ~~Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the 55 Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock exclusively 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 (i) the aggregate amount of any such other all-cash distributions to all holders of its Common Stock within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraphs (5) and (6) of this Section 10.04 has been made and (ii) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer ~~made~~ by the Company or any of its Subsidiaries for all or any portion of the Common Stock ~~shall expire, then, if~~ concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraphs (5) and (6) of this Section 10.04 has been made (the "combined cash and tender ~~offer shall require~~ amount") exceeds 10.0% of the ~~payment to stockholders~~ product of ~~consideration~~ the current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 10.04) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section 10.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 10.04) of the ~~aggregate consideration payable~~ Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (i) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraphs (5) and (6) of this Section 10.04 has been made and (ii) the aggregate amount of any cash distributions to all holders of the Common Stock within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraphs (5) and (6) of this Section 10.04 has been made (the "combined tender and cash amount") exceeds 10.0% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 10.04) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 10.04) 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 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,~~ 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 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 10.04), and (Bb) a subdivision or combination, as the ~~product~~ case may be, of the number of 57 shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~less any Purchased Shares~~ and ~~excluding any~~ 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 10.04). 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 ~~held in the treasury~~ of capital stock of the Company, which rights, options or warrants (i) at 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 shares of capital stock, in each case in clauses (i) through (iii) until the ~~Expiration Time and~~ occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 10.04 not be deemed issued or distributed until the ~~Closing Price~~ occurrence of the earliest Trigger Event. (8) For the purpose of any computation under paragraph (2), (4), (5) or (6) of this Section 10.04, the current market price per share of Common Stock on any date shall be calculated by the ~~Trading Day next succeeding the Expiration Date~~ Company and ~~the denominator of which~~ shall be the ~~product~~ average of the ~~number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in~~ daily Closing Price Per Share for the ~~treasury~~ five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than the earlier of the ~~Company) at~~ day in question and the ~~Expiration Time multiplied by~~ day before the ~~Closing Price per share~~ "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 ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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 iincreases in the Conversion Rate, for the remaining term of the Notes or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 10.04, as it considers to be advisab

Appears in 1 contract

Sources: Indenture (Community Health Systems Inc/)

Adjustment of Conversion Rate. (a1) The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1i) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding~~ Common Stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 (i), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (ii) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price per share (determined as provided in paragraph (3) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 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 ~~additional~~ shares of Common Stock ~~offered (or into which~~ that the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such Current Market Price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ as the case may be. For the purposes of this paragraph (ii), 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ iii) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4iv) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (A) any rights, options or warrants referred to in paragraph (ii) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zB) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (C) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph 1(i) of this Section and (~~as if each Holder had converted such Security into Common Stock immediately prior~~ D) any consideration distributed in any merger or consolidation to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ 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 ~~record date~~ distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (3) of this Section 12.4) of the Common Stock on the date fixed for such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ determination less the then fair market value ~~(as determined by reference to the Current Market Price of the Distributed Securities) on such record date~~ of the portion of the ~~Distributed Securities~~ assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~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 ~~amount~~ 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(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 ~~Triggering Distribution is equal to or greater than~~ securities for the ~~Current Market Price~~ 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 Sale Price for the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declaredsame Trading Day. (7v) ~~If any tender offer made by~~ In case the Company or any of its Subsidiaries shall make a tender offer for ~~all or any portion of~~ Common Stock and such tender offer shall expire, then, if immediately prior to the ~~tender offer shall require the payment to stockholders~~ opening of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding~~ day after the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it such offer may ~~be amended) (the last time at which such tenders could~~ have been ~~made on the Expiration Date is hereinafter sometimes called the “Expiration Time”~~amended), the Conversion Rate shall be increased so that the ~~same~~ Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to ~~the~~ close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (Ax) the ~~Fair Market Value~~ 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 ~~Time~~ Date (the “Expiration Time”) (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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 ~~Closing~~ 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~~ Date, and the denominator ~~of which~~ shall be the product of the number of shares of Common Stock outstanding (including ~~Purchased Shares~~ tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the ~~Closing~~ 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, distribute cash to all holders of its outstanding Common Stock (excluding any cash that is distributed as part of a distribution referred to in paragraph 1(iv) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted 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 shall be equal to the Current Market Price per share (determined as provided in paragraph (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 per share (determined as provided in paragraph (3) of this Section 12.4) of the Common Stock on such date fixed for determination. (2) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 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 1(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) For the purpose of (A) any computation under paragraphs 1(ii), (iv) or (v) 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 10 consecutive Trading Days selected by the Company commencing not more than 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 date fixed for determination and the day before the “ex-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. (4) All calculations under this Article shall be made to the nearest U.S. $0.01 or to the nearest one-hundredth of a share, as the case may be. (5) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1) (i), (ii), (iii), (iv), (v) and (vi) of this Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (5) and its actions in so doing shall, absent manifest error, be final and conclusive. (6) Notwithstanding the foregoing provisions of this Section, no adjustment of the Conversion Rate shall be required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of divid

Appears in 1 contract

Sources: Indenture (Hewitt Associates Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~clause (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered ~~for subscription~~ with such rights or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) warrants would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~15.05(a) (any of the foregoing hereinafter in this Section 15.05(d)) (called the ~~“Distributed~~ "Securities”")), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Record Date. If the dividend or distribution requiring an adjustment pursuant to this clause (d) consists of capital stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company, for purposes of making such adjustment, (i) the Current Market Price shall be determined as of the date (the "Ex-Dividend Rate") on which "ex-dividend trading" commences for such distribution on the Nasdaq National Market or such other national or regional exchange or market on which such securities are then listed or quoted, based on the average of the Closing Sale Prices of the Common ~~Stock~~Stock for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date and (ii) the Fair Market Value of such dividend or distribution shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the closing sale prices of those securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock 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 (a "Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.05 (and no adjustment to the Conversion Rate under this Section 15.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 15.05 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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. For purposes of this Section 15.05(d) and Section 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or such rights or warrants to subscribe for or purchase shares of Common Stock of the type described in ~~effect on~~ Section 15.05(b) (or both), shall be deemed instead to be (1) a dividend or distribution of the ~~record~~ 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 15.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”meaning of Section 15.05(a) and 15.05(b) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 15.05(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividends per share of Common Stock in any twelve-month period do not exceed 5.00% of the arithmetic average of the Closing Sale Prices during the ten Trading Days immediately prior to the date of declaration of such dividend, calculated at the time of each dividend or distribution, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the record date for~~ such ~~Triggering Distribution (a “Determination Date”)~~ Record Date by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination~~ such Record Date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 15.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) that as of the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iaggr

Appears in 1 contract

Sources: Indenture (Compudyne Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 dividing the Conversion Rate in effect immediately prior to such date 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 ~~additional~~ shares of Common Stock ~~offered (or into which~~ that the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant~~ cash, other than those referred to ~~Section 4.06(a)(6)~~in paragraphs 5 and 6 below, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (~~as if each Holder had converted such Security into Common Stock immediately prior~~ 1) of this Section and (iv) any consideration distributed in any merger or consolidation to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 12.4) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of Directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed 77 with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~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 ~~amount~~ Conversion Rate shall be immediately readjusted, effective as of the date that the Board of Directors determines not to make such ~~Triggering Distribution~~ distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the ~~Current Market Price~~ current market price per share of the Common Stock on ~~the Determination Date~~such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon ~~conversion,~~ conversion the amount of ~~cash so distributed that~~ such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declareddate. (75) If In case the Company shall, by dividend or 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 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 (5) or paragraph (6) of this Section 12.4 has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender offer ~~made~~ by the Company or any of its Subsidiaries for all or any portion of the Common Stock ~~shall expire~~concluded within the 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"), ~~then, if~~ exceeds 10% of the ~~tender offer shall require~~ product of the ~~payment to stockholders of consideration~~ current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 12.4) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over 10% 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 ~~aggregate consideration payable~~ Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any non-cash consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) or paragraph (5) of this Section 12.4 has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (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 Section 12.4) 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,~~ 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 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 (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding~~ 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 12.4). (8) For the purpose of any ~~shares held in~~ computation under paragraphs (2), (4), (5) or (6) of this Section 12.4, the ~~treasury of the Company) at the Expiration Time multiplied by the Closing Price~~ 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 Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 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 ~~Trading Day next succeeding~~ applicable securities exchange without the ~~Expiration Date~~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 iincreases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to re

Appears in 1 contract

Sources: Indenture (Connetics Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution ~~to all holders of~~ on its outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~determination. Such ~~adjustment~~ an increase shall be successively made ~~successively~~ whenever any such payment of a dividend or distribution in shares of Common Stock on the Company’s outstanding Common Stock is ~~made~~ made, and each such increase shall become effective immediately after the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or ~~make any distribution on Common Stock held in the treasury of the Company~~other distribution. If any dividend or distribution of the type described in this ~~clause~~ Section 2.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase; and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the sum of 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 ~~record date~~ rights or warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including ~~securities)~~ capital stock of or similar equity interests in a Subsidiary or other business unit of the Company (or any other securities, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~2.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~2.05(a)) (any of the foregoing hereinafter in this Section 2.05(d) called the “~~Distributed~~ Securities”), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as which, in the case of Securities consisting in whole or in part of capital stock or similar equity interests, shall be determined ~~by reference to~~ based the Current Market Price of such Securities (replacing all references in the ~~Distributed~~ definition of Current Market Price to the Common Stock with references to such Securities), and which shall otherwise be determined by the Company’s Board of Directors, whose determination shall be conclusive, and which determination shall be described in a resolution of the Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~Holder would have received had such Holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~2.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable Record Date. If the amount of any adjustment hereunder is not determinable as of the effective date of such adjustment, then a Holder converting Notes on and after such effective date and prior to the date such adjustment is determinable shall be entitled to receive the amount of shares of Common Stock of the Company determined by applying the Conversion Rate as in effect immediately prior to such effective date and an additional amount of shares of Common Stock~~. Notwithstanding the foregoing~~, if any, as shall result from the ~~securities~~ adjustment of such Conversion Rate. Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital~~ 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 of(such rights or warrants, “Rights”), shall be deemed not to have been distributed for purposes of this Section 2.05 (and no adjustment to the Conversion Rate under this Section 2.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such Rights shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2.05(d). If any such Right, including any such existing Rights distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such Rights 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 (and a termination or expiration of the existing Rights without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of Rights, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 2.05 was made, (1) in the ~~“Spinoff Securities”)~~case of any such Rights that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ a holder or holders of Common Stock with respect to such Rights (assuming such holder had retained such Rights), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such Rights that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such Rights had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 2.05(d) in ~~effect~~ respect of Rights distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such Rights are actually distributed, or reserved by the Company for distribution to Holders of Notes upon conversion by such Holders of Notes to Common Stock. Holders shall be entitled to receive upon conversion of their Notes, in addition to the shares of Common Stock issuable upon conversion, the related Rights for the Common Stock pursuant to that certain Rights Agreement, dated as of June 1, 1997, between the Company and First Chicago Trust Company of New York, as amended by Amendment No. 1 to Rights Agreement dated February 17, 1999, or any replacement or successor plan thereto, subject to the generally applicable terms of such plan, and no additional adjustment to the Conversion Rate shall be made with respect to such Rights; provided that if a Trigger Event has occurred with respect to such Rights at the time of conversion of Notes, then Holders of such Notes shall not be entitled to receive such Rights upon conversion of their Notes but the Conversion Rate shall be adjusted as set forth in the foregoing paragraph (disregarding the last sentence thereof). For purposes of this Section 2.05(d) and Section 2.05(a) and (b), any dividend or distribution to which this Section 2.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this Section 2.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 2.05(a) and 2.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution”, ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ “the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such ~~distribution on~~ determination” within the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”meaning of Section 2.05(a) and 2.05(b) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed “outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination” within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 2.05(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 2.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 1.25% of the arithmetic average of the Closing Price of the Common Stock during the ten Trading Days immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such Holder would have received had such Holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared~~. (7)~~ . If any ~~tender offer~~ adjustment is required to be made as set forth in this Section 2.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that which such distribution exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value amount of the ~~aggregate consideration payable~~ quarterly cash dividend permitted to ~~stockholders based on the acceptance (up~~ be excluded pursuant hereto. If an adjustment is required to ~~any maximum specified~~ be made as set forth in ~~the terms~~ this Section 2.05(e) above as a result of ~~the tender offer) of all shares validly tendered and~~ a distribution that is not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Datea quarterly dividend, such iadjust

Appears in 1 contract

Sources: Third Supplemental Indenture (Providian Financial Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding ~~Common Stock~~ Shares in ~~shares~~ Shares (regardless of ~~Common Stock~~whether such dividend or distribution is received and accepted by any holder of outstanding Shares), the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect ~~immediately prior to such record~~ at the opening of business on the date following the Record Date by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of the~~ number of ~~shares of Common Stock~~ Shares outstanding at the close of business on the date fixed for such ~~record date plus~~ determination; and (ii) the denominator of which shall be the sum of such number of Shares and the total number of ~~shares of Common Stock~~ Shares constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ increase to become effective immediately after ~~such record date~~the opening of business on the day following the Record Date. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of ~~shares of Common Stock~~ Shares at any time outstanding shall not include ~~shares~~ Shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on ~~Common Stock~~ Shares held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 10.3(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding ~~Common Stock~~ Shares entitling them (for a period expiring within 45 forty-five (45) days after ~~such distribution)~~ the Record Date, to subscribe for or purchase ~~shares of Common Stock (or securities convertible into Common Stock)~~ Shares at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record date for the determination of stockholders entitled to receive such rights or warrants~~Record Date, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to ~~such record date by a fraction~~ the Record Date, (i) the numerator of which ~~the numerator~~ shall be the number of ~~shares of Common Stock~~ Shares outstanding at the close of business on ~~such record date~~ the Record Date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which Shares that the aggregate offering price of the total number of ~~shares of Common Stock~~ Shares so offered ~~for subscription or~~ would purchase at such Current Market Price, and (or ii) the ~~aggregate conversion price~~ denominator of which shall be the ~~convertible securities so~~ number of Shares outstanding on the Record Date plus the total number of additional Shares offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following any such ~~record date~~Record Date. To the extent that ~~shares of Common Stock (or securities convertible into Common Stock)~~ Shares are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~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~~ Shares actually delivered. If 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 ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase ~~shares of Common Stock~~ Shares at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of shares of Common Stock so offered~~such Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case outstanding Shares shall be subdivided into a greater number of 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 shall be combined into a smaller number of 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its ~~Common~~ Shares of any class of Capital Stock of ~~shares of its Capital Stock, other than Common Stock,~~ the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~10.3(e), (ydividends or distributions of stock referred to in Section 10.3(a), 10.3(b) ~~dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution paid exclusively in cash ~~for which an adjustment was made pursuant~~ referred to in Section ~~4.06(a)(6~~10.3(f)) (any of the ~~“Distributed Securities”~~foregoing hereinafter in this Section 10.3(d) called the "DISTRIBUTED ASSETS"), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such Distributed ~~Securities~~ Assets for distribution to the Holders upon the conversion of the Securities on so that any such ~~dividend or distribution date (as~~ holder converting Securities will receive upon such conversion, in addition to the Shares to which such holder is entitled, the amount and kind of such Distributed Assets which such holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Securities into ~~Common Stock~~ Shares immediately prior to the ~~record date with respect to~~ Record Date for such ~~distribution~~distribution of the Distributed Assets)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall be equal to the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price per ~~share~~ Share on such Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Common Stock~~ Board of Directors) on ~~such record date and~~ the Record Date of the portion of the Distributed Assets so distributed applicable to one Share; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price per ~~share~~ Share, such adjustment to become effective immediately prior to the opening of business on the day following such ~~record date less~~ Record Date; provided, however, that in the event (1) the then fair market value (as ~~determined by reference~~ so determined) of the portion of the Distributed Assets so distributed applicable to one Share is equal to or greater than the Current Market Price of the ~~Distributed Securities~~Shares on the Record Date or (2) the Current Market Price of Shares on ~~such record date~~ the Record Date exceeds the then fair market value (as so determined) of the portion of the Distributed ~~Securities~~ Assets so distributed applicable to one ~~share of Common Stock (determined on the basis~~ Share by less than $1.00, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Distributed Assets such ~~distribution~~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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~10.3(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~~Shares. ~~Notwithstanding the foregoing~~However, if such event or transaction occurs before July 15, 2008, the consideration into which the Securities will be convertible will be limited to Shares or other prescribed securities (within the meaning of the Canada Income Tax Act). Rights or warrants distributed by the Company to all holders of ~~its Common Stock consist~~ Shares entitling the holders thereof to subscribe for or purchase shares of the Company's Capital Stock ofother than Shares, except as set forth in the second paragraph following this paragraph (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; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Shares, shall be deemed not to have been distributed for purposes of this Section 10.3 (and no adjustment to the Conversion Rate under this Section 10.3 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 10.3(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 ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 10.3 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ 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 Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of 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 10.3(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 ~~makes an equivalent~~ for distribution to ~~the Holders~~ holders of Securities upon conversion by such holders of Securities to Shares. For purposes of this Section 10.3(d) and Sections 10.3(a) and (b), any dividend or distribution to which this Section 10.3(d) is applicable that also includes Shares, or rights or warrants to subscribe for or purchase Shares (or both), shall be deemed instead to be (1) a dividend or distribution of the ~~Securities~~evidences of indebtedness, assets or shares of capital stock other than such Shares or rights or warrants (and any Conversion Rate adjustment required by this Section 10.3(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such Shares or such rights or warrants (and any further Conversion Rate adjustment required by Sections 10.3(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distribution", "the date fixed for the determination of shareholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 10.3(a) and (b), and (B) any Shares 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 10.3(a). (e) In case a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Shares shall expire and such tender offer or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of Shares tendered) of an aggregate consideration having a Fair Market Value (as determined in good faith by the Board of Directors) that combined together with: (i) the aggregate amount of the cash, plus the Fair Market Value, as of the expiration of such tender offer or exchange offer, of any other consideration payable in respect of any other tender offers or exchange offers, by the Company or any of its Subsidiaries for all or any portion of the Shares expiring within the 12 months preceding the expiration of such tender offer or exchange offer and in respect of which no adjustment pursuant to this Section 10.3(e) has been made; and (ii) the aggregate amount of any distributions to all holders of Shares made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to Section 10.3(f) has been made (excluding cash consideration payable in respect of any open market repurchase program referred to in this Section 10.3(e)); exceeds 10% of the product of the Sale Price of the Shares as of the last time (the "EXPIRATION TIME") tenders could have been made pursuant to such tender offer (as it may be amended), times the number of Shares outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall be equal to the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the ~~record~~ date ~~fixed for~~ of the ~~determination of stockholders entitled to receive such distribution~~ Expiration Time by a fraction, : (i) the numerator of which shall be the sum of (Ax) the ~~average Closing Price~~ Fair Market Value (determined as aforesaid) of ~~one share of Common Stock over~~ the ~~10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution~~ aggregate consideration payable to shareholders based on the ~~New York Stock Exchange~~acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all Shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the Shares deemed so accepted up to any such maximum, ~~NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined~~ being referred to as the ~~“Spinoff Valuation Period”~~"PURCHASED SHARES") and (By) the product of (~~i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii~~1) the number of ~~Spinoff Securities distributed~~ Shares outstanding less any Purchased Shares at the Expiration Time and (2) the last reported Sale Price of the Shares (determined as provided in ~~respect~~ the definition of ~~one share of Common Stock and~~ Current Market Price) on the Trading Day next succeeding the Expiration Time, and (ii) the denominator of which shall be the ~~average Closing~~ number of Shares outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by last reported Sale Price of ~~one share~~ the Shares (determined as provided in the definition of ~~Common Stock over~~ the ~~Spinoff Valuation Period~~Current Market Price) on the Trading Day next succeeding the Expiration Time, such ~~adjustment to~~ reduction (if any) shall become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after~~ day following the ~~date on which ex-dividend trading commences; provided, however,~~ Expiration Time. In the event that the Company ~~may in lieu of the foregoing adjustment elect~~ is obligated to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed purchase Shares pursuant to any ~~rights plan that~~ such tender offer, but the Company ~~implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required~~ is permanently prevented by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated applicable law from ~~the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with~~ effecting any such ~~Rights Plan; provided that if, at the time~~ purchases or all or a portion of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Datesuch purchases are rescinded, the Conversion Rate ~~will~~ shall again be adjusted as to be the Conversion Rate which would then be in effect if such (or such portion of the) tender offer had not been made. If the ~~Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4)~~ application of this Section ~~4.06(a), subject~~ 10.3(e) to ~~appropriate readjustment~~ any tender offer would result in an increase in the ~~event of the expiration~~Conversion Rate, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph no adjustment shall ~~not constitute a distribution of rights or warrants pursuant to~~ be made for such tender offer under this Section ~~4.06(a~~10.3(e). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6f) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its ~~Common Stock a payment consisting exclusively~~ Shares cash (regardless of ~~cash~~ whether such dividend or distribution is received and accepted by any holder of outstanding Shares) (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ithe

Appears in 1 contract

Sources: Indenture (Fairfax Financial Holdings LTD/ Can)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time ~~by the Company~~ as follows: (1a) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of its outstanding ~~Common Stock in shares of~~ Common Stock, then the Conversion Rate in effect immediately prior to the ~~record date~~ close of business on the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the ~~same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction~~ Holder of ~~which the numerator~~ any Note thereafter surrendered for conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at~~ which it would have received had such Note been converted immediately prior to the ~~close~~ happening of ~~business on~~ such ~~record date plus the total number~~ event as well as such additional shares it would have received as a result of ~~shares of Common Stock constituting~~ such ~~dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~event. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide its outstanding shares of Common Stock into a greater number of ~~shares,~~ Common Stock or combine its outstanding shares of Common Stock into a smaller number of ~~shares~~Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall ~~be, in~~ be adjusted so that the ~~case~~ Holder of ~~a subdivision~~ any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common ~~Stock, proportionately increased and, in~~ Stock which it would have received had such Note been converted immediately prior to the ~~case~~ happening of such event as well as such additional shares as it would have received as a ~~combination~~ result of ~~Common Stock, proportionately reduced~~such event. Such adjustment shall ~~be made successively whenever any such subdivision or combination of the Common Stock occurs and shall~~ become effective immediately ~~after~~ prior to the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price ~~per share (or having a Conversion Price per share) less than the Current Market Price~~ per share of Common Stock (~~as determined in accordance with clause (8)~~ or having a conversion, exchange or exercise price per share of ~~this Section 4.06(a)~~Common Stock) less than the Closing Sale Price of the Common Stock on the ~~record~~ Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the ~~determination~~ security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of ~~stockholders entitled to receive~~ or exchange or exercise for such ~~rights~~ security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or ~~warrants~~exercisable security), then the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record~~ date of announcement 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 ~~such record~~ the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the ~~convertible~~ convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the close of business on ~~such record~~ the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate ~~conversion~~ conversion, exchange or exercise price of the ~~convertible~~ convertible, exchangeable or exercisable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at such Closing Sale Price of the ~~Current Market Price per share of~~ Common ~~Stock on such record date~~Stock. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date for such ~~record date~~determination. To the extent that shares of Common Stock (or securities ~~convertible~~ convertible, exchangeable or exercisable into shares of Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. If 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~~ which would then be in effect if the ~~record date~~ Record 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current Market Price per share of Common Stock~~ such Closing Sale Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a ~~payment consisting~~ consolidation or merger in which the Company is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its capital stock, evidences of its Indebtedness or other assets, including securities, but excluding (i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in Section 12.3(c), (iii) dividends and distributions paid exclusively in cash referred to in Section 12.3(e) and (iv) dividends and distributions of ~~cash~~ stock, securities or other property or assets (~~excluding any dividend or distribution~~ including cash) in connection with the ~~liquidation~~reclassification, ~~dissolution~~ change, merger, consolidation, statutory share exchange, combination, sale or ~~winding up~~ conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in this Section 12.3(d) called the ~~Company~~"DISTRIBUTED ASSETS"), ~~whether voluntary or involuntary~~then, in each such case, subject to paragraphs (D) and (E) of this Section 12.3(d), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 ~~Expiration~~ Record Date with respect to such distribution by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ifraction:

Appears in 1 contract

Sources: Indenture (Willbros Group Inc)

Adjustment of Conversion Rate. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect immediately prior to the record date for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights or warrants to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such ~~rights~~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. If 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 the record date for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ shareholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of ~~Indebtedness~~ indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “"Distributed Securities”"), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of ~~stockholders~~ shareholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “"Spinoff Securities”"), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period (the "Spinoff Valuation Period") commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, ~~NASDAQ Global~~ Nasdaq National Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “"Rights”") that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “"Rights Plan”"), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, ~~redemption~~termination, ~~termination~~ repurchase or ~~repurchase~~ redemption of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “"Triggering Distribution”") to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary) in excess of $0.12 per share of Common Stock in respect of each fiscal quarter, whether or not paid in such fiscal quarter (the "Dividend Threshold Amount"), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “"Determination Date”") by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of by which such Triggering Distribution exceeds the Dividend Threshold Amount applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of by which such Triggering Distribution exceeds the Dividend Threshold Amount applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon ~~conversion,~~ conversion the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. The Dividend Threshold Amount is subject to adjustment as a result of the events set forth in this Section 4.06(a) giving rise to an adjustment of the Conversion Rate; provided that no adjustment will be made to the Dividend Threshold Amount as a result of any event described in this clause (6) of Section 4.06(a). (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to ~~stockholders~~ shareholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “"Expiration Date”") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “"Expiration Time”"), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to ~~stockholders~~ shareholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such it

Appears in 1 contract

Sources: Indenture (United Auto Group Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time ~~by the Company~~ as follows: (1a) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, pay a dividend or make a distribution in Common Stock to all or substantially all holders of its outstanding ~~Common Stock in shares of~~ Common Stock, then the Conversion Rate in effect immediately prior to the ~~record date~~ close of business on the Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the ~~same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction~~ Holder of ~~which the numerator~~ any Note thereafter surrendered for conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at~~ which it would have received had such Note been converted immediately prior to the ~~close~~ happening of ~~business on~~ such ~~record date plus the total number~~ event as well as such additional shares it would have received as a result of ~~shares of Common Stock constituting~~ such ~~dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~event. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 12.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. (2b) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, subdivide its outstanding shares of Common Stock into a greater number of ~~shares,~~ Common Stock or combine its outstanding shares of Common Stock into a smaller number of ~~shares~~Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the day upon which such subdivision or combination becomes effective shall ~~be, in~~ be adjusted so that the ~~case~~ Holder of ~~a subdivision~~ any Note thereafter surrendered for conversion shall be entitled to receive that number of shares of Common ~~Stock, proportionately increased and, in~~ Stock which it would have received had such Note been converted immediately prior to the ~~case~~ happening of such event as well as such additional shares as it would have received as a ~~combination~~ result of ~~Common Stock, proportionately reduced~~such event. Such adjustment shall ~~be made successively whenever any such subdivision or combination of the Common Stock occurs and shall~~ become effective immediately ~~after~~ prior to the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the Company ~~shall~~ shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, issue rights or warrants for a period expiring within 60 days (other than any rights or warrants referred to in Section 12.3(d)) to all or substantially all holders of its outstanding Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase ~~shares of~~ Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock) ), at a price ~~per share (or having a Conversion Price per share) less than the Current Market Price~~ per share of Common Stock (~~as determined in accordance with clause (8)~~ or having a conversion, exchange or exercise price per share of ~~this Section 4.06(a)~~Common Stock) less than the Closing Sale Price of the Common Stock on the ~~record~~ Business Day immediately preceding the date of announcement of such issuance (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the ~~determination~~ security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of ~~stockholders entitled to receive~~ or exchange or exercise for such ~~rights~~ security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or ~~warrants~~exercisable security), then the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such ~~record~~ date of announcement 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 ~~such record~~ the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the ~~convertible~~ convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the close of business on ~~such record~~ the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate ~~conversion~~ conversion, exchange or exercise price of the ~~convertible~~ convertible, exchangeable or exercisable securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at such Closing Sale Price of the ~~Current Market Price per share of~~ Common ~~Stock on such record date~~Stock. Such ~~adjustment shall be made successively whenever any such rights are issued, and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the Record Date for such ~~record date~~determination. To the extent that shares of Common Stock (or securities ~~convertible~~ convertible, exchangeable or exercisable into shares of Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. If 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~~ which would then be in effect if the ~~record date~~ Record 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current Market Price per share of Common Stock~~ such Closing Sale Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, at any time or from time to time after the initial Issue Date while any of the Notes are outstanding, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all or substantially all holders of its outstanding shares of Common Stock (including any such distribution made in connection with a ~~payment consisting~~ consolidation or merger in which the Company is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its capital stock, evidences of its Indebtedness or other assets, including securities, but excluding (i) dividends or distributions of Common Stock referred to in Section 12.3(a), (ii) any rights or warrants referred to in Section 12.3(c), (iii) dividends and distributions paid exclusively in cash referred to in this Section 12.3(d) and (iv) dividends and distributions of ~~cash~~ stock, securities or other property or assets (~~excluding any dividend or distribution~~ including cash) in connection with the ~~liquidation~~reclassification, ~~dissolution~~ change, merger, consolidation, statutory share exchange, combination, sale or ~~winding up~~ conveyance to which Section 12.4 applies (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in this Section 12.3(d) called the ~~Company~~“distributed assets”), ~~whether voluntary or involuntary~~then, in each such case, subject to paragraphs (D) and (E) of this Section 12.3(d), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 ~~Expiration~~ Record Date with respect to such distribution by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ifraction:

Appears in 1 contract

Sources: Indenture (Comtech Telecommunications Corp /De/)

Adjustment of Conversion Rate. (a1) The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1i) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding~~ Common Stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 (i), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (ii) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price per share (determined as provided in paragraph (3) of this Section 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 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 ~~additional~~ shares of Common Stock ~~offered (or into which~~ that the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such Current Market Price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ as the case may be. For the purposes of this paragraph (ii), 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ iii) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4iv) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (A) any rights, options or warrants referred to in paragraph (ii) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zB) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (C) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph 1(i) of this Section and (~~as if each Holder had converted such Security into Common Stock immediately prior~~ D) any consideration distributed in any merger or consolidation to ~~the record date with respect to such distribution~~which Section 12.11 applies)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ 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 ~~record date~~ distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (3) of this Section 12.4) of the Common Stock on the date fixed for such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ determination less the then fair market value ~~(as determined by reference to the Current Market Price of the Distributed Securities) on such record date~~ of the portion of the ~~Distributed Securities~~ assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~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 ~~amount~~ 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(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 ~~Triggering Distribution is equal to or greater than~~ securities for the ~~Current Market Price~~ 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 Sale Price for the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declaredsame Trading Day. (7v) ~~If any tender offer made by~~ In case the Company or any of its Subsidiaries shall make a tender offer for ~~all or any portion of~~ Common Stock and such tender offer shall expire, then, if immediately prior to the ~~tender offer shall require the payment to stockholders~~ opening of ~~consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock~~ business on the ~~Trading Day next succeeding~~ day after the last date (the “"Expiration Date”") tenders could have been made pursuant to such tender offer (as it such offer may ~~be amended) (the last time at which such tenders could~~ have been ~~made on the Expiration Date is hereinafter sometimes called the “Expiration Time”~~amended), the Conversion Rate shall be increased so that the ~~same~~ Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to ~~the~~ close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (Ax) the ~~Fair Market Value~~ 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 ~~Time~~ Date (the "Expiration Time") (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and (By) 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 ~~Closing~~ Current Market Price per share of Common Stock ~~on the Trading Day next succeeding the Expiration Date and the denominator~~ (as determined in accordance with subsection (3) of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such ithis Section 12.4)

Appears in 1 contract

Sources: Indenture (Exult Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 15.03(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the record date fixed for such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a)) on the record date~~ for the 10 Trading Days immediately preceding the date fixed for determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock on for the 10 Trading Days immediately preceding the date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date fixed for determination of stockholders entitled to receive such rights or warrants, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness, cash or other assets (including ~~securities) of the Company (~~Notes, but excluding (x1) any ~~issuance of~~ Common Stock, rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.03(a) or Section 15.03(b), (y2) dividends and distributions (A) in connection with ~~a reclassification, change, consolidation, merger, combination,~~ the liquidation, ~~dissolution,~~ dissolution or winding ~~up, sale~~ up of the Company or ~~conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and~~ (zB) ~~any dividend or distribution~~ paid exclusively in cash ~~for~~ and (3) any capital stock, evidences of indebtedness, cash or assets distributed upon a merger or consolidation to which ~~an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~15.05 applies) (any of such shares of capital stock, indebtedness, cash or other property hereinafter in this Section 15.03(d)) (called the “Distributed ~~Securities~~Property”)), ~~then~~ then, in each such case (unless the Company distributes such Distributed ~~Securities~~ Property for distribution to the ~~Holders of Securities~~ Noteholders on such dividend or distribution date (as if each ~~Holder~~ Noteholder had converted such ~~Security~~ Note into Common Stock immediately prior to the ~~record date with respect to~~ Record Date (as defined in Section 15.03(h)(iii) for such ~~distribution~~distribution or dividend of Distributed Property)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property 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 that if the then fair market value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Distributed Property such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~15.03(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 on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~10 consecutive~~ ten (10) Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Date plus (B) the ~~product of (i) the average Closing Price over the Spinoff Valuation Period~~ fair market value of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock for which this Section 15.03(d) applies, which shall equal the number of securities distributed in respect of each share of Common Stock multiplied by the average of the Closing Sale Prices of those securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Distributed Property such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted its Notes on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.03 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.03 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 15.03(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 15.03 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 15.03(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes into Common Stock. For purposes of this Section 15.03(d), Section 15.03(a), and Section 15.03(b), any dividend or distribution to which this Section 15.03(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 15.03(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants to which Section 15.03(b) applies (and any Conversion Rate adjustment required by this Section 15.03(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 15.03(a) and Section 15.03(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Section 15.03(a) and Section 15.03(b)and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed “outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination” within the meaning of Section 15.03(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion of a Note (or any portion thereof) the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted ~~each Security~~ such Note (or portion thereof) on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to expire and such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such it

Appears in 1 contract

Sources: Indenture (Sepracor Inc /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the 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 ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, (i) the numerator of which shall be ~~increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of~~ the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date plus~~ determination; and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ reduction to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 10.03(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the number of ~~additional~~ shares that the aggregate offering price of ~~Common Stock offered (or into which~~ the ~~convertible securities~~ total number of shares so offered ~~are convertible~~would purchase at such Current Market Price, and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ stockholders entitled to receive such ~~record date~~ rights or warrants plus ~~the number of shares which the aggregate offering price of~~ the total number of additional shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so~~ offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities, but excluding any rights or warrants referred to in Section 10.03(b) ~~of the Company (~~and excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~10.03(a) (any of the ~~“Distributed Securities”~~foregoing hereinafter in this Section 10.03(d) called the "DISTRIBUTED ASSETS"), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such Distributed ~~Securities~~ Assets for distribution to the Holders upon the conversion of the Securities on so that any such ~~dividend or distribution date (as~~ 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 ~~each Holder~~ such holder had converted ~~such Security~~ its Securities into Common Stock immediately prior to the ~~record date with respect to~~ Record Date (as defined in Section 10.03(h)(4) for such ~~distribution~~distribution of the Distributed Assets)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall be equal to the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price per share of the Common Stock on such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Assets so distributed applicable to one share of Common Stock; and (ii) the denominator of which shall be the Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price of the Common Stock on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Distributed Assets such ~~distribution~~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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~10.03(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. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock 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 10.03 (and no adjustment to the Conversion Rate under this Section 10.03 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 10.03(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 ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 10.03 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 10.03(d) in ~~effect~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~record~~ 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 10.03(d) and Sections 10.03(a) and (b), any dividend or distribution to which this Section 10.03(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 10.03(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 10.03(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the ~~New York Stock Exchange~~meaning of Sections 10.03(a) and (b), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 10.03(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (an "EXTRAORDINARY CASH DIVIDEND") (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 10.03(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 10.03(h)) during the ten Trading Days (as defined in Section 10.03(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the rate determined by ~~multiplying such~~ dividing the Conversion Rate in effect immediately prior to the close of business on such record date by a fraction, (i) the numerator of which shall be the Current Market Price of the Common Stock on the record date ~~for such Triggering Distribution~~ less the amount of cash so distributed (~~a “Determination Date”~~and not excluded as provided above) ~~by a fraction~~applicable to one share of Common Stock, and (ii) the ~~numerator~~ denominator of which shall be such Current Market Price ~~per share~~ of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided, however, that in the ~~Triggering Distribution is paid. If~~ event the ~~amount~~ portion of ~~such Triggering Distribution~~ the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share~~ of the Common Stock on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder ~~of a Security~~ shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on ~~such Determination Date~~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 ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 10.03(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 10.03(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the ~~“Expiration Date”~~"EXPIRATION TIME") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value reported Closing Price of the ~~aggregate consideration payable to stockholders based on the acceptance~~ Common Stock (~~up to any maximum specified~~ determined as provided in the ~~terms~~ definition of ~~the tender offer~~Current Market Price) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration ~~Date and~~ Time, the ~~denominator of which~~ Conversion Rate shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iadjusted so that the

Appears in 1 contract

Sources: Indenture (General Mills Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time (without duplication) by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 17.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any rights~~ rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights, options or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price per share~~ average of the Closing Prices of the Common Stock for the ten (~~as determined in accordance with clause (8) of this Section 4.06(a)~~10) on Trading Days immediately preceding the ~~record~~ declaration date for ~~the determination of stockholders entitled to receive~~ such ~~rights or warrants~~distribution, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the opening of business on the day following the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights, options 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 ~~record date~~ rights, options or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the sum of 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 ~~record date~~ rights, options or warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at a price equal to the ~~Current Market Price per share~~ average of the Closing Prices of the Common Stock on for the ten (10) Trading Days immediately preceding the declaration date for such ~~record date~~distribution. Such adjustment shall be successively made ~~successively~~ whenever any such ~~rights~~ rights, options or warrants are issued, 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 ~~record date~~rights, options or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such rights, options 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~~ rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights~~ rights, options 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 ~~the record~~ such date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, options or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at a price less than the ~~Current Market Price per share~~ average of the Closing Prices of the Common Stock for the ten (10) Trading Days immediately preceding the declaration date for such distribution, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such ~~rights~~ rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of ~~Directors~~Directors of the Company. (4c) ~~If the Company shall make a dividend or other distribution to all holders~~ In case outstanding shares of ~~its~~ Common Stock shall be subdivided into a greater number of shares of ~~its Capital Stock, other than~~ Common Stock, ~~or evidences~~ the Conversion Rate in effect at the opening of ~~Indebtedness or other assets (including securities)~~ business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock ~~immediately prior to~~ shall be combined into a smaller number of shares of Common Stock, the ~~record date with respect to such distribution)) the~~ 77 Conversion Rate in effect immediately prior to the ~~record date fixed for~~ opening of business on the ~~determination~~ 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 ~~stockholders entitled~~ business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Company shall, by dividend or otherwise, distribute to ~~receive such~~ all holders of its Common Stock shares of any class of capital stock of the Company or evidences of indebtedness, property or assets (including rights, options, warrants and other securities, but excluding any rights, options or warrants referred to in Section 17.05(b), and excluding any dividend or distribution (x) paid exclusively in cash or (y) referred to in Section 17.05(a)) (any of the foregoing hereinafter in this Section 17.05(d) called the "Distributed Property"), then, in each such case the Conversion Rate shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the opening of business on the day immediately following the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors of the ~~Distributed Securities~~Company, whose determination shall be conclusive, and described in a resolution of such Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property so distributed applicable to one share of Common Stock, such adjustment to become effective immediately after the opening of business on the day following such Record Date; provided that if the then Fair Market Value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the foregoing adjustment, upon any conversion of the Notes thereafter, the provisions of Section 17.06 shall apply to such conversion mutatis mutandis; provided further that for such application, any references in such provisions to the "Reference Property" shall be deemed references to a unit composed of (a) the number of shares of Common Stock ~~outstanding at~~ equal to the ~~close~~ Conversion Rate immediately prior to the relevant distribution and (b) the amount of ~~business on~~ Distributed Property such ~~record date). Such adjustment shall be made successively whenever any~~ holder would have received had such ~~distribution is made and shall become effective~~ holder held a number of shares of Common Stock equal to the Conversion Rate immediately ~~after~~ prior to the ~~record date for the determination of stockholders entitled to receive such~~ relevant distribution. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors of the Company determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~17.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock ~~consist~~ consists of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the opening of business on the ~~record date fixed for~~ day following the ~~determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Prices of ~~one share of~~ the Common Stock ~~over~~ for the 10 ten (10) consecutive Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences for such dividend or distribution on the ~~New York Stock Exchange, NASDAQ Global~~ Nasdaq National Market or such other ~~U.S.~~ principal national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or quoted (~~such consecutive Trading Day period shall be defined as~~ the ~~“Spinoff Valuation Period”~~"Ex-Dividend Date") ~~and~~ plus (B) the ~~product of (i) the~~ average Closing ~~Price over the Spinoff Valuation Period~~ Prices of the ~~Spinoff Securities multiplied by (ii) the number of Spinoff Securities~~ securities distributed in respect of ~~one~~ each share of Common Stock for the ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date; and (ii) the denominator of which shall be the average of the Closing ~~Price~~ Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) consecutive Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately ~~prior to~~ after the opening of business on the ~~fifteenth Trading Day after the date on~~ day following such Record Date. In any case in which ~~ex-dividend trading commences; provided~~this paragraph is applicable, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”Section 17.05(a), ~~in lieu of any adjustment required by any other provision~~ Section 17.05(b) and the first paragraph of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would 17.05(d) shall not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if applicable. Rights or warrants distributed by the Company ~~distributed~~ to all holders of Common Stock ~~Distributed Securities as provided~~ entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 17.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate as under this Section 17.05 will be required) until the ~~result~~ occurrence of the ~~issuance~~ earliest Trigger Event, whereupon such rights, options and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 17.05(d). If any such right or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any ~~Rights~~and each such event shall be deemed to be the date of distribution and record date with respect to new rights, ~~the distribution of separate certificates representing~~ options or warrants with such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the~~ rights (and a termination or ~~invalidation~~ expiration of the existing rights, options or warrants without exercise by any of the holders thereof). In addition, in the event of any ~~Rights.~~ distribution (6or deemed distribution) ~~If the Company shall~~of rights, ~~by dividend~~ options or ~~otherwise~~warrants, at or any ~~time distribute~~ Trigger Event or other event (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~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 17.05 was made, ~~whether voluntary~~ (1) in the case of any such rights, options or ~~involuntary)~~warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~increased so~~ readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the ~~same shall equal the rate determined by multiplying such~~ Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued. Prior to the occurrence of any Triggering Event, no adjustment to the Conversion Rate shall be made pursuant to this Section 17.05(d) in ~~effect~~ respect of rights, options or warrants distributed to or deemed distributed upon the occurrence of such Triggering Event to the extent such rights, options or warrants are actually distributed, or reserved by the Company for distribution, to holders of Notes upon conversion by such holders of Notes into Common Stock. For purposes of this Section 17.05(d), Section 17.05(a) and Section 17.05(b), any dividend or distribution to which this Section 17.05(d) is applicable that also includes shares of Common Stock, or rights, options 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, options or warrants (and any Conversion Rate adjustment required by this Section 17.05(d) with respect to such dividend or distribution shall then be made) immediately ~~prior~~ followed by (2) a dividend or distribution of such shares of Common Stock or such rights, options or warrants (and any further Conversion Rate adjustment required by Sections 17.05(a) and 17.05(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights, options or warrants" and "the date fixed for such determination" within the meaning of Section 17.05(a) and 17.05(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 ~~record~~ date fixed for the determination of stockholders entitled to receive such dividend or other distribution" or "outstanding at the close of business on the date fixed for such ~~Triggering Distribution (a “Determination Date”) by a fraction,~~ determination" within the ~~numerator~~ meaning of ~~which shall be such Current Market Price per share~~ Section 17.05(a). The reclassification of the Common Stock ~~on the Determination Date and the denominator of~~ into securities including securities other than Common Stock (other than any reclassification upon an event to which Section 17.06 applies) shall be ~~the Current Market Price per share~~ deemed to involve (a) a distribution of such securities other than the Common Stock ~~on the Determination Date less the amount of such Triggering Distribution applicable~~ to ~~one share~~ all holders of Common Stock (~~determined on~~ and the ~~basis~~ effective date of such reclassification shall be deemed to be the "Record Date" within the meaning of this Section 17.05(d)), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding ~~at the close of business on the Determination Date), such increase to become effective~~ immediately prior to ~~the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of~~ such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time~~ and the ~~Closing Price per share~~ effective date of ~~Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which~~ such reclassification shall be deemed to be "the ~~product~~ 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 Section 17.05(c)). (e) In case the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iCo

Appears in 1 contract

Sources: Indenture (Conexant Systems Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause determination, (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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding -------- any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~15.05(a) (any of the ~~“Distributed~~ foregoing hereinafter in this Section 15.05(d) -------- -------- called the "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to such distribution~~Record Date (as defined in Section 15.05(h)(4)) for such -------- distribution of the Securities), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities 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 that if the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued -------- trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock of~~the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.05 (and no adjustment to the Conversion Rate under ----- this Section 15.05 will be required) until the occurrence of the earliest ----- Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, -------- including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 15.05 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 15.05(d) in ~~effect~~ respect of rights or warrants distributed or deemed -------- distributed on any Trigger Event to the ~~record~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Sections 15.05(a) and (b), -------- -------- any dividend or distribution to which this Section 15.05(d) is applicable that -------- also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of 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 15.05(d) with respect to -------- such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and (b) with respect to such dividend or distribution shall then be -------- made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the ~~New York Stock Exchange~~meaning of Sections 15.05(a) -------- and (b), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution.Section 15.05(a). -------- (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 15.05(e) -------- (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.05(h)) during the ten Trading Days (as defined in Section --------- 15.05(h)) immediately prior to the date of declaration of such dividend, and (y) --------- any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less the amount of ~~such Triggering Distribution~~ cash so distributed (and not excluded as provided above) applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 15.05(e) as a result of a distribution that -------- is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.05(e) above as a result of a distribution that is not a -------- quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the ~~Fair Market Value~~ fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iw

Appears in 1 contract

Sources: Indenture (Axcelis Technologies Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1a) If In case at any time after the date hereof, the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on any class of ~~outstanding Common Stock~~ capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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, if any, issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (b) In case at any time after the date hereof, the Company shall issue 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 13.4) of the Common Stock on the date fixed for the determination of shareholders entitled to receive such rights, warrants or options, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by 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 ~~additional~~ shares of Common Stock ~~offered (or into~~ which the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (or the aggregate conversion price of the convertible securities so offered for subscription or~~ purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately ~~prior to~~ after the opening of business on the day following the date ~~on which~~ fixed for such determination. For the ~~Triggering Distribution is paid. If the amount~~ purposes of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. this paragraph (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”b), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of the number of shares of Common Stock at any time outstanding ~~(less any Purchased Shares and excluding any~~ shall not include shares held in the treasury of the ~~Company) at the Expiration Time and the Closing Price per share~~ Company but will include shares issuable in respect of scrip certificates, if any, issued in lieu of fractions of shares of Common ~~Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number~~ Stock. The Company will not issue any rights or warrants in respect of shares of Common Stock ~~outstanding (including Purchased Shares but excluding any shares~~ held in the treasury of the Company. (c) ~~at the Expiration Time multiplied by the Closing Price per share~~ In case outstanding shares of ~~the~~ Common Stock ~~on the Trading Day next succeeding the Expiration Date, such i~~shall be subdivided into a greater

Appears in 1 contract

Sources: Indenture (MRV Communications Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction of which: (i) the numerator shall be the sum of (1) the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 11.05(g)) fixed for such determination and (2) the total number of shares of Common Stock constituting such dividend or other distribution ; and (ii) the denominator shall be number of shares of Common Stock outstanding at the close of business on the Record Date (as defined in Section 11.05(g)) fixed for such determination, such increase to become effective immediately after the opening of business on the day following the Record Date. If the dividend or distribution of the type described in this Section 11.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (b) If the 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, if the outstanding shares of Common Stock shall 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. (c) If the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase, for a period expiring within 45 days after the date of issuance, shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 11.05(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such ~~record date~~ Record Date by a fraction of ~~which~~ which: (i) the numerator shall be ~~the sum of~~ the number of shares of Common Stock outstanding at the close of business on such ~~record date~~ Record Date plus the total number of additional shares of Common Stock ~~constituting such dividend~~ so offered for subscription or ~~other distribution and of which~~ purchase; and (ii) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, Record Date plus the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on~~ Price, such ~~record date. Such~~ adjustment ~~shall be made successively whenever any such rights are issued, and~~ shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights~~rights or warrants, the Conversion Rate shall be readjusted to be the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if ~~the record~~ 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 ~~stockholders~~ Holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants, and any amount payable on upon exercise ~~or conversion~~ thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors (whose determination shall be conclusive and described in a resolution of the Board of Directors). (4d) If the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock,~~ Stock of the Company (other than ~~Common Stock,~~ any dividends or distributions to which Section 11.05(a) applies) or evidences of ~~Indebtedness~~ its indebtedness or other assets (including securities~~) of the Company (~~, but excluding (xi) any ~~issuance~~ rights or warrants of ~~rights for which an adjustment was made pursuant~~ a type referred to in Section ~~4.06(a)(3),~~ 11.05(c) and (yii) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash ~~for which an adjustment was made pursuant~~ referred to in Section ~~4.06(a)(6~~11.05(e)) (the foregoing hereinafter in this Section 11.05(d) called the “~~Distributed~~ Securities”), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) case, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on such ~~record date~~ Record Date (as defined in Section 11.05(g)) with respect to such distribution by a fraction of ~~which~~ which: (i) the numerator shall be ~~the~~ such Current Market Price ~~per share of the Common Stock~~ on such ~~record date and of which~~ Record Date; and (ii) the denominator shall be the Current Market Price ~~per share~~ (determined as provided in Section 11.05(g)) on such ~~record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive and described in a resolution of the ~~Distributed Securities)~~ Board of Directors), on such ~~record date~~ Record Date of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock, such increase to become effective immediately after the opening of business on the day following the Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Holder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion of a Note (or any portion thereof) the amount of Securities such ~~distribution~~Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~11.05(d) by reference to the actual or when issued trading market for any ~~securities~~securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of pursuant to Section 11.05(g) to the ~~Common Stock~~extent possible. Notwithstanding the foregoing, if the securities distributed ~~by the Company~~ to all holders of ~~its~~ the Company’s Common Stock consist of shares of Capital Stock of, or similar equity interests in, a ~~Subsidiary~~ subsidiary or other business unit of the ~~Company (the “Spinoff Securities”)~~Company, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a ~~fraction,~~ fraction of which: (i) the numerator ~~of which~~ shall be the sum of (A) the average ~~Closing Price~~ of ~~one share~~ the closing prices of the Common Stock ~~over~~ for the ~~10 consecutive Trading Day period~~ ten (10) trading days commencing on and including the fifth ~~Trading Day~~ trading day after the date on which “ex-dividend ~~trading~~ trading” commences for such distribution on the New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or quoted (~~such consecutive Trading Day period shall be defined as~~ the “~~Spinoff Valuation Period~~Ex-Dividend Date”) ~~and~~ plus (B) the ~~product~~ fair market value of (isuch distribution in respect of each share of Common Stock for which this Section 11.05(d) applies, which shall equal the number of such securities distributed in respect of each share of Common Stock multiplied by the average ~~Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by~~ closing prices of those securities distributed for the ten (10) trading days commencing on and including the fifth trading day after the Ex-Dividend Date; and (ii) the ~~number of Spinoff Securities distributed in respect of one share of Common Stock and the~~ denominator ~~of which~~ shall be the average ~~Closing Price~~ of ~~one share~~ the closing prices of the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~ten (10) trading days commencing on and including the fifth trading day after the Ex-Dividend Date, such ~~adjustment~~ increase to become effective immediately ~~prior to~~ after the opening of business on the ~~fifteenth Trading Day after~~ day following the ~~date on which ex-dividend trading commences~~Record Date; provided, however, that the Company may in lieu of the foregoing ~~adjustment elect to~~ adjustment, make adequate provision so that each Holder ~~of Securities~~ shall have the right to receive upon conversion ~~thereof~~ of a Note (or any portion thereof) the amount of ~~such Spinoff~~ Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted ~~each Security on~~ such ~~Determination~~ Note (or portion thereof) immediately prior to such Record Date. ~~In the event that~~ If such ~~dividend or~~ distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided or~~ distribution had not been declared~~. (7) If any tender offer made~~ . Rights or warrants distributed by the Company ~~or any of its Subsidiaries for~~ to all ~~or any portion~~ holders of Common Stock ~~shall expire~~entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain circumstances), ~~then~~which rights or warrants, if until the ~~tender offer shall require the payment~~ occurrence of a specified event or events (“Trigger Event”):(i) are deemed to ~~stockholders of consideration per share~~ be transferred with such shares of Common ~~Stock having a Fair Market Value~~ Stock; (~~determined as provided below~~ii) ~~that exceeds the Closing Price per share~~ are not exercisable; and (iii) are also issued in respect of future issuances of Common ~~Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could~~ Stock, shall be deemed not to have been ~~made pursuant to such tender offer (as it may be amended~~distributed for purposes of this Section 11.05(d) (and no adjustment to the ~~last time at which~~ Conversion Rate under this Section 11.05(d) shall be required) until the occurrence of the earliest Trigger Event, whereupon such ~~tenders could~~ rights and warrants shall be deemed to have been ~~made on~~ distributed and an appropriate adjustment to the ~~Expiration~~ Conversion Rate under this Section 11.05(d) shall be made. If any such rights or warrants, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to Trigger Events, then the occurrence of each such event shall be deemed to be such date of issuance and Record Date ~~is hereinafter sometimes called~~ with respect to new rights or warrants (and a termination or expiration of the ~~“Expiration Time”~~existing rights or warrants without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event with respect thereto, that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 11.05(d) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~increased~~ readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. Notwithstanding any other provision of this Section 11.05(d) to the contrary, rights, warrants, evidences of indebtedness, other securities, cash or other assets (including, without limitation, any rights distributed pursuant to any stockholders rights plan, and any rights or warrants distributed or deemed to be distributed upon the occurrence of a Trigger Event) shall be deemed not to have been distributed for purposes of this Section 11.05(d) if the Company elects to reserve such rights, warrants, evidences of indebtedness, other securities, cash or other assets (including, without limitation, any rights distributed pursuant to any stockholders rights plan, and any rights or warrants distributed or deemed to be distributed upon the occurrence of a Trigger Event) for distribution to each Holder who converts a Note (or any portion thereof) so that such Holder shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the amount and kind of such distributions that such Holder would have been entitled to receive if such Holder had, immediately prior to the applicable Record Date, converted such Note into Common Stock. For purposes of this Section 11.05(d) and Sections 11.05(a) and (c), any dividend or distribution to which this Section 11.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 11.05(a) or Section 11.05(c) applies, or both, shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of Capital Stock, rights or warrants other than such shares of Common Stock or rights or warrants to which Section 11.05(a) or Section 11.05(c) applies (and any Conversion Rate increase required by this Section 11.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants to which Section 11.05(a) or Section 11.05(c) applies (and any further Conversion Rate increase required by Sections 11.05(a) and (c) with respect to such dividend or distribution shall then be made, except that (A) the Record Date of such dividend or distribution shall be substituted for “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution,” “Record Date fixed for such determination” and “Record Date” within the meaning of Section 11.05(a) and for “the date fixed for the determination of stockholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and “such Record Date” within the meaning of Section 11.05(c) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of Section 11.05(a)). (e) If the Company shall, by dividend or otherwise, distribute cash to all holders of its Common Stock (excluding any cash that is distributed as part of a distribution referred to in Section 11.05(d)), then, immediately after the close of business on the Record Date fixed for such distribution, the Conversion Rate shall be increased, 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 Expiration~~ such Record Date by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be equal to the ~~sum of~~ Current Market Price on such Record Date; and (Aii) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be equal to the ~~product~~ Current Market Price on such Record Date less the amount of such distribution of cash applicable to one share of Common Stock, such adjustment to be effective immediately after the ~~number~~ opening of ~~shares~~ business on the day following the Record Date; provided, however, that in the event that the cash so distributed applicable to one share of Common Stock ~~outstanding (including Purchased Shares but excluding any shares held~~ is equal to or greater than the Current Market Price on the Record Date, in ~~the treasury~~ lieu of the ~~Company~~foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) at the ~~Expiration Time multiplied by the Closing Price per share~~ amount of ~~the Common Stock on the Trading Day next succeeding the Expiration Date,~~ cash such iHolder would have received had such Holder converted su

Appears in 1 contract

Sources: Indenture (Delta Air Lines Inc /De/)

Adjustment of Conversion Rate. 3.5.1 If and whenever at any time and from time to time the Corporation shall: (ai) ~~The~~ subdivide, redivide or change its then outstanding Common Shares into a greater number of Common Shares; (ii) reduce, combine or consolidate or change its then outstanding Common Shares into a lesser number of Common Shares; or (iii) issue Common Shares (or securities exchangeable or convertible into Common Shares) to the holders of all or substantially all of its then outstanding Common Shares by way of stock dividend or other distribution (other than a stock dividend paid in the ordinary course) (any of such events being herein called a "Common Share Reorganization"), the Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If the Company shall pay a dividend or make a distribution to all holders of outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect effective immediately ~~prior to~~ after the record date at which the holders of Common Shares are determined for the ~~determination~~ purpose of ~~stockholders entitled to receive such dividend or other distribution shall be increased so that~~ the ~~same shall equal the rate determined~~ Common Share Reorganization by multiplying the Conversion Rate in effect ~~immediately prior to~~ on such record date by ~~a fraction of which~~ the ~~numerator shall be the sum of~~ quotient obtained when: (A) the number of ~~shares~~ Common Shares outstanding after the completion of such Common Share Reorganization (but before giving effect to the issue of any Common Shares issued after such record date otherwise than as part of such Common Share Reorganization) including, in the case where securities exchangeable or convertible into Common Shares are distributed, the number of Common ~~Stock~~ Shares that would have been outstanding at had such securities been exchanged for or converted into Common Shares on such record date, is divided by (B) the ~~close~~ number of ~~business~~ Common Shares outstanding on such record date ~~plus~~ before giving effect to the ~~total number of shares of~~ Common ~~Stock constituting such dividend or other distribution~~ Share Reorganization. 3.5.2 If and ~~of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively~~ whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time ~~outstanding~~ the Corporation shall ~~not include shares held in~~ fix the ~~treasury~~ record date for the issuance of ~~the Company. The Company will not pay any dividend~~ rights, options or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Rate shall again be adjusted warrants to the ~~Conversion Rate that would then be in effect if such dividend~~ holders of all or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to substantially all ~~holders~~ of its outstanding Common ~~Stock~~ Shares entitling them (for a period expiring ~~within~~ no more than 45 days after such ~~distribution)~~ record date to subscribe for or to purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities of the Corporation convertible into Common ~~Stock~~Shares) at a price per ~~share~~ Common Share (or having a ~~Conversion Price~~ conversion price per ~~share~~Common Share) of less than 95% of the Current Market Price ~~per share~~ of a Common ~~Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ Share on ~~the~~ such record date ~~for the determination of stockholders entitled~~ (any such event being herein referred to ~~receive such rights or warrants~~as a "Rights Offering"), then the Conversion Rate then in effect ~~immediately prior thereto~~ shall be adjusted ~~so that the same shall equal the rate determined~~ immediately after such record date by multiplying the Conversion Rate in effect ~~immediately prior to~~ on such record date by ~~a fraction~~ the quotient obtained when: (A) the sum of ~~which the numerator shall be~~ the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding ~~at the close of business~~ on such record date ~~plus~~ and the number of additional ~~shares~~ Common Shares offered for subscription or purchase under the Rights Offering (or the number of Common ~~Stock offered (or~~ Shares into which the ~~convertible~~ securities so offered are convertible) ~~and~~ is divided by (B) the sum of ~~which the denominator shall be~~ the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding ~~at the close of business~~ on such record date ~~plus the~~ and a number ~~of shares which~~ determined by dividing the aggregate ~~offering~~ price of the total number of ~~shares of~~ additional Common ~~Stock so~~ Shares offered for subscription or purchase under the Rights Offering (or the aggregate conversion price of the convertible securities so ~~offered for subscription or purchase, which shall be determined~~ offered) by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price ~~per share~~ of a Common ~~Stock~~ Shares on such record date. Any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. If such rights, options or warrants are not so issued or if, at the date of expiry of the rights, options or warrants subject to the Rights Offering, less than all the rights, options or warrants have been exercised, then the Conversion Rate shall be readjusted effective immediately after the date of expiry to the Conversion Rate which would have been in effect if such record date had not been fixed or to the Conversion Rate which would then be in effect on the date of expiry if the only rights, options or warrants issued had been those that were exercised, as the case may be. 3.5.3 If and whenever at any time the Corporation shall fix a record date for the making of a distribution (including a distribution by way of stock dividend) to the holders of all or substantially all its outstanding Common Shares of: (i) shares of the Corporation of any class other than Common Shares (and shares convertible into Common Shares referred to in subclause 3.5.1); (ii) rights, options or warrants (excluding a Rights Offering, rights, options or warrants exercisable within 45 days of the record date having a conversion price per Common Share equal to or greater than 95% of the then Current Market Price); (iii) evidences of its indebtedness (excluding indebtedness convertible into Common Shares referred to in subclause 3.5.1); or (iv) assets (other than with respect to (i), (ii), (iii) and (iv) above, dividends paid in the ordinary course and a Common Share Reorganization) (any such event being herein referred to as a "Special Distribution") then, in each such case, the Conversion Rate shall be adjusted effective immediately after the record date at which the holders of Common Shares are determined for the purposes of the Special Distribution by multiplying the Conversion Rate in effect on such record date by the quotient obtained when: (A) the product obtained when the number of Common Shares outstanding on the record date is multiplied by the Current Market Price of a Common Share on such date, is divided by (B) the difference obtained when the amount by which the aggregate fair market value (as determined by the board of directors, which determination shall be conclusive) of the shares, rights, options, warrants, evidences of indebtedness or assets, as the case may be, distributed in the Special Distribution exceeds the fair market value (as determined by the board of directors, which determination shall be conclusive) of the consideration, if any, received therefor by the Corporation, is subtracted from the product obtained when the number of Common Shares outstanding on the record date is multiplied by the Current Market Price of a Common Share on such date, provided that no such adjustment shall be made if the result of such adjustment would be to decrease the Conversion Rate in effect immediately before such record date. Any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever ~~any~~ such ~~rights are issued, and shall become effective immediately after such~~ a record ~~date~~date is fixed. To the extent that ~~shares of Common Stock (or securities convertible into Common Stock) are~~ such distribution is not ~~delivered after the expiration of such rights~~so made, the Conversion Rate shall be readjusted effective immediately to the Conversion Rate ~~that~~ which would then be in effect ~~had the adjustments made~~ based upon ~~the issuance of~~ such ~~rights been made on the basis of delivery of only the number of~~ shares ~~of Common Stock actually delivered. If such rights are not so issued~~or rights, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for options or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4) If the Company shall make a dividend or other distribution to all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, warrants or evidences of ~~Indebtedness~~ indebtedness or ~~other~~ assets ~~(including securities)~~ actually distributed. 3.5.4 If and whenever there is a capital reorganization of the ~~Company (excluding (x) any issuance of rights~~ Corporation not otherwise provided for ~~which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions~~ in ~~connection with~~ this clause 3.5 or a ~~reclassification, change,~~ consolidation, merger, ~~combination, liquidation, dissolution, winding up, sale~~ arrangement or ~~conveyance resulting in~~ amalgamation (statutory or otherwise) of the Corporation with or into another body corporate (any such event being called a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”"Capital Reorganization"), ~~then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders~~ any Series A Holder who has not exercised its right of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately~~ conversion prior to the record date for such Capital Reorganization shall be entitled to receive and shall accept, upon the exercise of such right at any time after the record date for such Capital Reorganization, in lieu of the number of Common Shares to which it was theretofore entitled upon conversion, the aggregate number of shares or other securities of the Corporation or of the corporation or body corporate resulting, surviving or continuing from the Capital Reorganization that such holder would have been entitled to receive as a result of such Capital Reorganization if, on the record date, it had been the registered holder of the number of Common Shares to which he was theretofore entitled upon conversion, subject to adjustment thereafter in accordance with ~~respect~~ provisions the same, as nearly as may be possible, as those contained in clauses 3.5 and 3.6; provided that no such Capital Reorganization shall be carried into effect unless all necessary steps shall have been taken so that the Series A Holders shall thereafter be entitled to receive such number of shares or other securities of the Corporation or of the corporation or body corporate resulting, surviving or continuing from the Capital Reorganization. 3.5.5 In the case of any reclassification of, or other change in, the outstanding Common Shares other than a Common Share Reorganization or a Capital Reorganization, the right of conversion shall be adjusted immediately after the record date for such reclassification or other change so that Series A Holders shall be entitled to receive, upon the exercise of such right at any time after the record date of such reclassification or other change, such shares, securities or rights as they would have received had such Series A Shares been converted into Common Shares immediately prior to such ~~distribution)~~record date subject to adjustment thereafter in accordance with provisions, the same as nearly may be possible, as those contained in clauses 3.5 and 3. 3.5.6 In the event that one or more preferential cumulative dividends are not paid on the Series A Shares on the scheduled dividend payment date, whether or not such dividend or dividends were declared, and such dividend or dividends remain accrued but unpaid or there is a Deferred Dividend Amount in respect of such Series A Share, at the time that a Series A Holder exercises his right to convert such Share, the Conversion Rate for each Series A Share so converted shall be adjusted effective on the base of conversion by multiplying (a) the Conversion Rate in effect immediately prior to the ~~record date fixed for~~ time of conversion by (b) the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value quotient obtained when (~~as determined by reference to the Current Market Price of the Distributed Securities~~i) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and A)$14.55 plus (B) the ~~product~~ amount of accrued but unpaid dividends on such Series A Share plus (iC) the ~~average Closing Price over the Spinoff Valuation Period~~ Deferred Dividend Amount in respect of ~~the Spinoff Securities multiplied~~ such Series A Share, is divided by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution$14.55. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such i

Appears in 1 contract

Sources: Convertible Preferred Shares Purchase Agreement (World Heart Corp)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five calendar days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market~~ Closing Sale Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ Business Day immediately preceding the date ~~for the determination~~ of ~~stockholders entitled to receive~~ announcement of such issuance of such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants; provided, that no adjustment to the Conversion Rate shall be made if the holder will otherwise participate in such distribution without conversion as a result of holding the Notes. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of ~~its~~ Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding (xi) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), (yii) any dividends ~~and~~ or distributions paid exclusively in cash, (iii) any dividends or distributions referred to in Section 15.05(a) or (iv) any dividends or distributions in connection with a reclassification, ~~change,~~ consolidation, merger, ~~combination, liquidation, dissolution, winding up,~~ binding share exchange or sale ~~or conveyance resulting~~ to which Section 15.06 applies (any of the foregoing hereinafter in ~~a change in the conversion consideration pursuant to~~ this Section ~~4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6~~15.05(d)) (called the ~~“Distributed~~ "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the record ~~date with respect to such distribution)~~date) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the record date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such record date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such~~ the record date of the portion of the ~~Distributed~~ Securities 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 that if the then Fair Market Value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ record date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any~~ so that each Noteholder shall have the right to receive upon conversion the amount of Securities such ~~distribution is made and shall become effective immediately after~~ holder would have received had such holder converted each Note on the record ~~date for the determination of stockholders entitled to receive such distribution~~date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price on the applicable record date. If the dividend or distribution requiring an adjustment pursuant to this clause (d) consists of ~~the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders~~ capital stock of ~~its Common Stock consist of Capital Stock of~~any class or series, or similar equity ~~interests in~~interests, of a Subsidiary or other business unit of the ~~Company~~ Company, for purposes of making such adjustment, (i) the ~~“Spinoff Securities”), the Conversion Rate~~ Current Market Price shall be ~~adjusted, unless~~ based on the ~~Company makes an equivalent distribution to the Holders~~ average of the ~~Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed~~ Closing Sale Prices of such securities for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive ten Trading ~~Day period~~ Days commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences for such distribution on ~~the~~ The New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which ~~the Common Stock is~~ such securities are then listed or ~~quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ quoted, and ~~(B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by~~ (ii) the ~~number~~ Fair Market Value of ~~Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which~~ such securities shall be determined as provided herein, measured for the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that same period. Rights or warrants distributed by the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 15.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Section 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 15.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and 15.05(b) with respect to such dividend or distribution shall then be made), except (A) the record date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 15.05(a) and 15.05(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed "outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination" within the meaning of Section 15.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (including any quarterly cash dividend, but excluding (x) any quarterly cash dividend distributed on or after January 20, 2010 on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any Fiscal Quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 15.05(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 1.25% of the average of the Closing Sale Price of a share of Common Stock over the ten consecutive Trading Days immediately preceding the date of declaration of such dividend calculated at the time of the declaration of each distribution during such quarter, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (z) any dividend or distribution in connection with a reclassification, consolidation, merger, binding share exchange or sale to which Section 15.06 applies), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying ~~such~~ the Conversion Rate in effect ~~immediately prior to the close of business~~ on the applicable record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date~~ such record date less (x) the amount of ~~such Triggering Distribution~~ the excess distribution in the case of a quarterly dividend on or after January 20, 2010 or (y) the full amount of cash so distributed (and not excluded as provided above) in all other cases, in each of (x) and (y), as applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such idistrib

Appears in 1 contract

Sources: Indenture (Advanced Medical Optics Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Companydetermination. If any dividend or distribution of the type described in this ~~clause~~ Section 14.06(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current~~ Average Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date ~~for~~ such issuance is first publicly announced by the ~~determination of stockholders entitled to receive such rights or warrants~~Company, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the sum of 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 ~~record date~~ rights or warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the Current~~ such Average Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record date for the determination of stockholders entitled to receive~~ such ~~rights~~ issuance had not been ~~fixed~~so declared or made. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current~~ such Average Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including cash and securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.06(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution ~~paid exclusively~~ referred to in ~~cash for which an adjustment was made pursuant to~~ Section ~~4.06(a)(6~~14.06(a) (any of the foregoing hereinafter in this Section 14.06(d)) (called the “~~Distributed Securities~~Distribution”)), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed Securities~~ Distribution for distribution to the ~~Holders~~ Noteholders upon the conversion of ~~Securities on~~ the Notes so that any such ~~dividend or distribution date (as~~ holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Distribution which such holder would have received if ~~each Holder~~ such holder had converted ~~such Security into Common Stock~~ its Notes immediately prior to the ~~record date with respect to such distribution~~Record Date)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the close of business on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~Current~~ Average Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date, and (ii) the denominator of which ~~the denominator~~ shall be the ~~Current~~ Average Market Price ~~per share~~ on such ~~record date~~ Record Date less (A) in the ~~fair market value~~ case of Distributions other than cash, the Fair Market Value (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of such Distributions applicable to one share of Common Stock and (B) in the case of Distributions of cash, the amount of such Distributions applicable to one share of Common Stock, such adjustment to become effective immediately prior to the ~~Current~~ opening of business on the day following such Record Date; provided that if the then Fair Market ~~Price of the Distributed Securities~~Value (as so determined) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ Distribution so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Average Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any~~ so that each Noteholder shall have the right to receive upon conversion the amount of Distribution such ~~distribution is made and~~ holder would have received had such holder converted each Note on the Record Date. A holder who converts a Note pursuant to Section 14.01(b) shall ~~become effective immediately after the record date for the determination of stockholders~~ not be entitled to ~~receive~~ any adjustment to the Conversion Rate with respect to such ~~distribution~~Note so converted. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.06(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~~ Average Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distribution distributed by the Company to all holders of its Common Stock ~~consist~~ consists of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, : (i) the numerator of which shall be the sum of (Ax) the average Closing Sale Price ~~of one share of Common Stock~~ over the 10 ten (10) consecutive Trading Day period (the “Spinoff Valuation Period") commencing on and including the fifth Trading Day after the date on which “ex-dividend ~~trading~~ trading” commences ~~for such distribution~~ on the ~~New York~~ Common Stock ~~Exchange, NASDAQ Global~~ on the Nasdaq National Market System or such other ~~U.S.~~ national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (~~B) the product of (i~~y) the average ~~Closing Price~~ Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) over the Spinoff Valuation Period of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number of Spinoff Securities~~ Distribution so distributed ~~in respect of~~ applicable to one share of Common ~~Stock and~~ Stock; and (ii) the denominator of which shall be the average Closing Sale Price ~~of one share of Common Stock~~ over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Distribution such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each Note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 14.06 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate as under this Section 14.06 will be required) until the ~~result~~ occurrence of the ~~issuance~~ 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 14.06(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 ~~Rights,~~ and each such event shall be deemed to be the date of distribution ~~of separate certificates representing~~ and record date with respect to new rights or warrants with such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the~~ rights (and a termination or ~~invalidation~~ expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any ~~Rights.~~ distribution (6or deemed distribution) ~~If the Company shall~~of rights or warrants, ~~by dividend~~ or ~~otherwise, at~~ any ~~time distribute~~ Trigger Event or other event (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the ~~Company~~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 14.06 was made, ~~whether voluntary~~ (1) in the case of any such rights or ~~involuntary)~~warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be ~~increased so~~ 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 ~~same shall equal the rate determined by multiplying such~~ 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 14.06(d) in ~~effect immediately prior~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~close~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of ~~business on the record date~~ Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.06(d) and Section 14.06(a) and (b), any dividend or distribution to which this Section 14.06(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share or purchase shares of Common Stock (~~determined on the basis~~ or both), shall be deemed instead to be (1) a dividend or distribution of the ~~number~~ 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 14.06(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 14.06(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “the date fixed for the determination of stockholders entitled to receive such rights or warrants” and “the date fixed for such determination” within the meaning of Section 14.06(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 ~~Determination Date~~date fixed for such determination” within the meaning of Section 14.06(a), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7e) ~~If any~~ (A) In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock (excluding any transactions solely involving odd lots of shares of Common Stock) shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “Expiration ~~Date~~Time”) tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the ~~last time at which such tenders could have been made~~ Closing Sale Price on the ~~Expiration Date is hereinafter sometimes called~~ Trading Day next succeeding the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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~~Shares) at the Expiration Time and the Closing Sale Price ~~per share of Common Stock~~ on the Trading Day next succeeding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including any tendered or exchanged shares (including Purchased ~~Shares but excluding any shares held in the treasury of the Company~~Shares)) at the Expiration Time multiplied by the Closing Sale Price ~~per share of the Common Stock~~ on the Trading Day next succeeding the Expiration ~~Date~~Time, such iadjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by appl

Appears in 1 contract

Sources: Indenture (Nii Holdings Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion ~~Rate~~ Price shall be adjusted from time to time by the Company as follows: (1a) ~~If the Company~~ In case IKON shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion ~~Rate~~ Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction: (i) the numerator of which shall be ~~increased so that~~ the ~~same shall equal~~ number of shares of Common Stock outstanding at the ~~rate determined by multiplying~~ close of business on the ~~Conversion Rate in effect immediately prior to~~ date fixed for such ~~record date by a fraction~~ determination; and (ii) the denominator 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ decrease to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of ~~the Company~~IKON. ~~The Company~~ IKON will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of ~~the Company~~IKON. If any dividend or distribution of the type described in this ~~clause~~ Section 12.04(a) is declared but not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to the Conversion ~~Rate~~ Price that would then be in effect if such dividend or distribution had not been declared. (2b) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company IKON shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion ~~Rate in effect immediately prior thereto~~ Price shall be ~~adjusted~~ decreased so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion ~~Rate~~ Price in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants 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 determination of stockholders entitled to receive such ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered ~~for subscription or~~ would purchase at such Current Market Price; and (or ii) the ~~aggregate conversion price~~ denominator of ~~the convertible securities so offered for subscription or purchase,~~ which shall be ~~determined by multiplying~~ the sum of the number of shares of Common Stock ~~issuable upon conversion~~ outstanding on the date fixed for determination of stockholders entitled to receive such ~~convertible securities by~~ rights or warrants plus the ~~Conversion Price per share~~ total number of additional shares of Common Stock ~~pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date~~offered for subscription or purchase. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~rights or warrants, the Conversion ~~Rate~~ Price shall be readjusted to the Conversion ~~Rate~~ Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate~~ Price that would then be in effect if ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by ~~the Company~~ IKON for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of ~~Directors~~Directors of IKON. (4c) If In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the ~~Company~~ Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall ~~make~~ be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction, or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case IKON shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of IKON or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~12.04(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~12.04(a) (any of the “foregoing hereinafter in this Section 12.04(d) called the "Distributed Securities”")), ~~then~~ then, in each such case (unless ~~the Company distributes~~ IKON elects to reserve such Distributed Securities for distribution to the Holders of Securities on upon the conversion of the Securities so that any such ~~dividend or distribution date (as~~ 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 Securities which such Holder would have received if ~~each~~ such Holder had converted ~~such Security~~ its Securities into Common Stock immediately prior to the ~~record date with respect to such distribution~~Common Stock Record Date (as defined in Section 12.04(h)) for such distribution of the Distributed Securities), the Conversion ~~Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ Price shall be ~~adjusted~~ decreased so that the same shall be equal to the rate determined by multiplying the Conversion ~~Rate~~ Price in effect ~~immediately prior~~ on the Common Stock Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the~~ on such Common Stock ~~on such record date and of which the denominator shall be the Current Market Price per share on such record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors of IKON, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors of IKON) on ~~such record date~~ the Common Stock Record Date of the portion of the Distributed Securities so distributed applicable to one share of Common ~~Stock~~ Stock; and (~~determined~~ ii) the denominator of which shall be the Current Market Price on ~~the basis of the number of shares of~~ such Common Stock ~~outstanding at~~ Record Date, such adjustment to become effective immediately prior to the ~~close~~ opening of business on the day following such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event Common Stock Record Date; provided 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 then ~~Fair Market Value~~ fair market value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share of~~ on the Common Stock ~~on such record date~~Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~holder~~ Holder of ~~a Security~~ Distributed Securities shall have the right to receive upon conversion the amount of Distributed Securities ~~so distributed that~~ such Holder would have received had such Holder converted each Security on the Common Stock Record Date. If such ~~record date~~dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors of IKON determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~12.04(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 on the applicable Common ~~Stock~~Stock Record Date. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by ~~the Company~~ IKON to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock of~~its 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 12.04 (and no adjustment to the Conversion Price under this Section 12.04 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 Price shall be made under this Section 12.04(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 ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 12.04 was made, (1) in the ~~“Spinoff Securities”)~~case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion ~~Rate~~ Price shall be ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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~~ Price shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 12.04(d) in ~~effect~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such rights or warrants are actually distributed, or reserved by IKON for distribution to Holders of Securities upon conversion by such holders of Securities to Common Stock. For purposes of this Section 12.04(d) and Sections 12.04(a) and (b), any dividend or distribution to which this Section 12.04(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 Price adjustment required by this Section 12.04(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 Price adjustment required by Sections 12.04(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Common Stock Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the ~~New York Stock Exchange~~meaning of Sections 12.04(a) and (b), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 12.04(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company In case IKON shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this Section 12.04(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 12.04(h)) during the ten Trading Days (as defined in Section 12.04(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of ~~the Company~~IKON, whether voluntary or involuntary), then, in such case, the Conversion ~~Rate~~ Price shall be ~~increased~~ decreased so that the same shall equal the ~~rate~~ price determined by multiplying ~~such~~ the Conversion ~~Rate~~ Price in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per~~ on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of ~~the~~ Common ~~Stock on the Determination Date and~~ Stock; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date less the amount of~~ such ~~Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~record date, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such Holder converted ~~each~~ the Security on ~~such Determination Date~~the record date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion ~~Rate~~ Price shall again be adjusted to be the Conversion ~~Rate~~ Price that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 12.04(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 12.04(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by ~~the Company~~ IKON or any Subsidiary of ~~its Subsidiaries~~ IKON for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~by the Board of Directors of IKON, whose determination shall be conclusive and described in a resolution of the Board of Directors of IKON) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “"Expiration ~~Date”~~Time") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 exceeds the Closing Price ~~per~~ of a share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such io

Appears in 1 contract

Sources: Indenture (Ikon Office Solutions Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock or combination into a lesser number of shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be ~~increased~~ Adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the close of business on the Record Date for such ~~record date~~ dividend or other distribution or subdivision or combination 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 ~~such record date~~ the Record Date plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record Date, such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause is declared but not so paid or made, the Conversion Rate shall again be adjusted increase to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the ~~date upon which~~ opening of business on the Record Date for such ~~subdivision or combination becomes effective~~determination. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the Record Date fixed for such ~~distribution~~issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price ~~per share~~ of the Common ~~Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants~~Stock, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Record Date for such ~~record date~~ distribution 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 Record Date for such ~~record date~~ distribution plus the total number of additional shares of Common Stock offered for subscription or purchase or issuable pursuant to such rights or warrants, and (~~or into which~~ ii) the ~~convertible securities so offered are convertible) and~~ denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the Record date for such ~~record date~~ distribution plus the ~~number of shares which~~ quotient obtained by dividing (x) the aggregate ~~offering~~ price payable to exercise such rights, by (y) the average of the ~~total number~~ Closing Sale Prices of ~~shares of~~ the Common Stock ~~so offered~~ for ~~subscription or purchase (or~~ the ~~aggregate conversion price of~~ 10 consecutive Trading Days immediately preceding the ~~convertible securities so offered~~ announcement date for ~~subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of~~ such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record datedistribution. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date for such ~~record date~~distribution. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record date~~ such Record Date for ~~the determination of stockholders entitled to receive~~ such ~~rights~~ distribution had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its~~ any class of Capital ~~Stock,~~ Stock of the Company (other than Common ~~Stock,~~ Stock as covered by Section 15.04(a)) or evidences of ~~Indebtedness~~ its indebtedness, cash or other assets (including securities~~) of the Company (~~, but excluding ~~(x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y)~~ dividends and distributions ~~in connection with a reclassification~~covered by Section 15.04(b), ~~change, consolidation, merger, combination, liquidation, dissolution, winding up, sale~~ Section 15.04(d) or ~~conveyance resulting in a change in the conversion consideration pursuant to~~ Section ~~4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6~~15.04(e)) (any of such shares of Capital Stock, indebtedness, cash or other property hereinafter in this Section 15.04(c)) called the ~~“Distributed Securities”~~"DISTRIBUTED PROPERTY")), ~~then~~ then, in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the ~~fair market value~~ Fair Market Value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the Distributed ~~Securities~~ Property 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 that if the then Fair Market Value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number~~ foregoing adjustment, adequate provision shall be made so that each Debentureholder shall have the right to receive, for each $1,000 principal amount of Debentures upon conversion, the amount of Distributed Property such holder would have received had such holder owned an amount of shares of Common Stock ~~outstanding at~~ equal to the ~~close of business~~ Conversion Rate on ~~such record date)~~the Record Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~15.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Distributed Property distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (that are, or, when issued, will be, traded on a U.S. securities exchange or quoted on the ~~“Spinoff Securities”)~~Nasdaq National Market or the Nasdaq Small Cap Market, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, , (i) the numerator of which shall be the sum of (A) the average of the Closing ~~Price~~ Sale Prices of the Capital Stock or equity interest applicable to one share of Common Stock ~~over~~ for the 10 consecutive Trading ~~Day period~~ Days commencing on and including the ~~fifth~~ third Trading Day after the ~~date on which ex~~Ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and Dividend Date plus (B) the ~~product of (i) the~~ average ~~Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by~~ Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date; and (ii) ~~the number of Spinoff Securities distributed in respect of one share of Common Stock and~~ the denominator of which shall be the average of the Closing ~~Price~~ Sale Prices of ~~one share of~~ the Common Stock ~~over~~ for the ~~Spinoff Valuation Period~~10 consecutive Trading Days commencing on and including the third Trading Day after the Ex-Dividend Date, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that~~ day following such Record Date. Rights or warrants distributed by the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 15.04 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 15.04 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 15.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.04 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 ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 15.04(c), Section 15.04(a), and Section 15.04(b), any dividend or distribution to which this Section 15.04(c) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 15.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants to which Section 15.04(b) applies (and any Conversion Rate adjustment required by this Section 15.04(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 15.04(a) and Section 15.04(b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the Record Date", "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 Section 15.04(a) and Section 15.04(b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed "outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination" within the meaning of Section 15.04(a). (6d) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ exclusively cash to all holders of its Common Stock ~~a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary),~~ then the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on the ~~record date~~ Record Date for such ~~Triggering Distribution (a “Determination Date”)~~ dividend or distribution by a fraction, , (i) the numerator of which shall be ~~such~~ the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such Record Date; and (ii) the denominator of which shall be the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date less~~ such record date minus the amount of ~~such Triggering Distribution~~ cash so distributed applicable to one share of Common ~~Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)~~Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided that if the ~~Triggering Distribution is paid. If~~ portion of the ~~amount~~ cash so distributed applicable to one share of ~~such Triggering Distribution~~ Common Stock is equal to or greater than the Current Market Price ~~per share of the Common Stock~~ on the ~~Determination~~ Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Debentureholder shall have the right to receive upon ~~conversion,~~ conversion of a Debenture (or any portion thereof) the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder converted each Security~~ holder owned a number of shares equal to the Conversion Rate on ~~such Determination~~ the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such ~~divided~~ dividend or distribution had not been declared. For the avoidance of doubt, for purposes of this Section 15.04(d), in the event of any reclassification of the Common Stock, as a result of which the Debentures become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this Section 15.04(e), references in this Section to one share of Common Stock or to the Current Market Price or Closing Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Debentures are then convertible equal to the numbers of shares of such class issued in respect of one share of Common Stock in such reclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications. (7e) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of cash and any other consideration per share of Common Stock having a Fair Market Value (as determined ~~as provided below~~by the Board of Directors, and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the ~~“Expiration Date”~~"EXPIRATION TIME") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the ~~last time at which such tenders could have been made~~ Current Market Price of the Common Stock on the ~~Expiration Date is hereinafter sometimes called~~ Trading Day next preceding the “Expiration Time”), the Conversion Rate shall be increased 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~~ Expiration ~~Date~~ Time by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so ~~accepted,~~ accepted up to any such maximum, being referred to as the ~~“Purchased Shares”~~"PURCHASED SHARES") and (By) 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~~Shares) at the Expiration Time and the ~~Closing~~ Current Market Price ~~per~~ of a share of Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including any Purchased ~~Shares but excluding any shares held in the treasury of the Company~~Shares) at the Expiration Time multiplied by the ~~Closing~~ Current Market Price ~~per~~ of a share of ~~the~~ Common Stock on the Trading Day next ~~succeeding~~ preceding the Expiration ~~Date~~Time, such iadjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (f) For purposes of this Section 15.04 the term "RECORD DATE" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, s

Appears in 1 contract

Sources: Indenture (Lifepoint Hospitals, Inc.)

Adjustment of Conversion Rate. ~~(a)~~ The “Conversion Rate” is subject to adjustment as provided in this Section 8. The Conversion Rate shall be ~~adjusted~~ subject to adjustments, calculated by the Issuer, from time to time ~~by the Company~~ as follows: (1a) If In case the ~~Company~~ Issuer shall hereafter pay a dividend or make a distribution to all holders of outstanding Common Stock in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record 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 ~~such~~ the record date ~~plus~~ fixed for such determination and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the record date fixed for such ~~record date~~determination. Such ~~adjustment shall be made successively whenever any such dividend or distribution is made and~~ increase shall become effective immediately after ~~such~~ the opening of business on the Business Day following the record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 8(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared.. Exhibit A Form of Note 3 (2b) If In case the ~~Company shall subdivide its~~ outstanding shares of Common Stock shall be subdivided into a greater number of ~~shares, or combine its outstanding~~ shares of Common ~~Stock into a smaller number of shares~~Stock, the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the day following the day upon which such subdivision or becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall 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, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock,~~ be proportionately reduced. ~~Such adjustment~~ In each such case, the Conversion Rate shall be ~~made successively whenever any~~ adjusted by multiplying such Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such subdivision or combination and the denominator of which shall be the number of shares of Common Stock ~~occurs and~~ outstanding immediately prior to such subdivision or combination. Such reduction or increase, as the case may be, shall become effective immediately after the ~~date~~ opening of business on the day following the day upon which such subdivision or combination becomes effective. (3c) If In case the ~~Company~~ Issuer shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them ~~(for a period expiring within 45 days after such distribution)~~ to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price per share of Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the record date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion Rate in effect ~~immediately prior to~~ at the opening of business on the date after such record date by a ~~fraction~~ fraction: (i) the numerator of which shall be the ~~numerator~~ number of shares of Common Stock outstanding on the close of business on the record date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible) at such below Current Market Price, and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on ~~such record date plus~~ the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate ~~conversion price~~ Conversion Price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securitiesoffered) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are ~~issued,~~ issued and shall become effective immediately after the opening of business on the day following the record date fixed for determination of shareholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock (or securities convertible into shares of Common Stock) are not delivered ~~after~~ pursuant to such rights or warrants, upon the expiration or termination of such ~~rights,~~ rights or warrants the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into shares of Common Stock) actually delivered. If 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~~ which would then be in effect if ~~the record~~ such date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received ~~by the Company~~ for such rights ~~and any amount payable on exercise~~ or ~~conversion thereof~~warrants, the value of such ~~consideration,~~ consideration if other than cash, to be determined by the Board of Directors.. Exhibit A Form of Note 4 (4d) If In case the ~~Company shall make a~~ Issuer shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its shares of Common Stock of ~~shares~~ any class of ~~its Capital Stock,~~ capital stock of the Issuer (other than ~~Common Stock,~~ any dividends or distributions to which Section 8(a) applies) or evidences of ~~Indebtedness~~ its indebtedness or other ~~assets (~~assets, including securities~~) of the Company~~ , but excluding, (~~excluding (x~~1) any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~8(c), (y2) any dividends ~~and~~ or distributions in connection with a reclassification, ~~change~~change of the Issuer’s shares of Common Stock, merger, consolidation, ~~merger~~statutory share exchange, combination, ~~liquidation, dissolution, winding up,~~ sale or ~~conveyance resulting in a change in the conversion consideration pursuant to Section 4.10~~ conveyance, and (z3) ~~any dividend or distribution~~ dividends and distributions paid exclusively in cash ~~for which an adjustment was made pursuant~~ referred to in Section ~~4.06(a)(6)~~8(e) (the securities described in foregoing clauses (1), (2) and (3) hereinafter in this Section 8(d) called the “~~Distributed Securities~~excluded securities”), ~~then~~ then, in each such ~~case (unless the Company distributes such Distributed Securities for distribution~~ case, subject to the ~~Holders~~ second succeeding paragraph of ~~Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution~~this Section 8(d)) , the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall be equal to the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to ~~such~~ the close of business on the record date with respect to such distribution by a ~~fraction~~ fraction: (i) the numerator of which shall be such Current Market Price per share of Common Stock on the ~~numerator~~ record date, and (ii) the denominator of which shall be the Current Market Price per share of ~~the~~ Common Stock on such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ date, less the then fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of ~~the Distributed Securities~~Directors, whose determination shall be conclusive and set forth in a board resolution) on such ~~record~~ date of the portion of the ~~Distributed Securities~~ securities, evidences of indebtedness or other assets so distributed (other than excluded securities) applicable to one share of Common Stock (determined on the basis of the number of shares of shares of Common Stock outstanding at on the ~~close of business on such~~ record date). Such ~~adjustment shall be made successively whenever any such distribution is made and~~ increase shall become effective immediately ~~after~~ prior to the opening of business on the day following the record ~~date for~~ date. However, in the ~~determination~~ event that the then fair market value (as so determined) of ~~stockholders entitled~~ the portion of the securities, evidences of indebtedness or other assets so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Market Price on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Note Holder shall have the right to receive upon conversion of the Notes (or any portion thereof) the amount of securities, evidences of indebtedness or other assets so distributed (other than excluded securities) that such ~~distribution~~Note Holder would have received had such Note Holder converted such Notes (or portion thereof) immediately prior to such record date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~8(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution (other than excluded securities), it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price of pursuant to Section 8(g) to the Common Stock. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjustedextent possible, unless the ~~Company makes an equivalent~~ Board of Directors in a board resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interests of the Note Holder. Exhibit A Form of Note 5 For purposes of Sections 8(a) through 8(d), any dividend or distribution to ~~the Holders~~ which this Section 8(d) is applicable that also includes share of Common Stock, a subdivision or combination of share of Common Stock to which Section 8(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) to which Section 8(c) applies (or any combination thereof), shall be deemed instead to be: (1) a dividend or distribution of the ~~Securities~~evidences of indebtedness, ~~so that~~ assets, shares of capital stock, rights or warrants other than such share of Common Stock, such subdivision or combination or such rights or warrants to which Sections 8(a) through 8(c) apply, respectively (and any Conversion Rate increase required by this Section 8(d) with respect to such dividend or distribution shall then be made), immediately followed by: (2) a dividend or distribution of such share of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 8(a) through 8(c) with respect to such dividend or distribution shall then be made), except: (A) the ~~same~~ record date of such dividend or distribution shall be ~~equal~~ substituted as (x) “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution”, “record date fixed for such determinations” and “record date” within the ~~rate determined by multiplying~~ meaning of Section 8(a), (y) “the ~~Conversion Rate in effect on~~ day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 8(b), and (z) as “the date fixed for the determination of shareholders entitled to receive such rights or warrants”, “the record date fixed for the determination of ~~stockholders~~ the shareholders entitled to receive such ~~distribution by a fraction~~rights or warrants” and such “record date” within the meaning of Section 8(c), ~~the numerator of which shall be the sum of~~ and (AB) ~~the average Closing Price of one share~~ any shares of Common Stock ~~over~~ included in such dividend or distribution shall not be deemed “outstanding at the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination” within the ~~date on which ex-~~meaning of Section 8(a) and any increase or reduction in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such or distribution. (5e) ~~With respect to any rights or warrants (~~In case the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company Issuer shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its shares of Common ~~Stock a payment consisting exclusively~~ Stock, cash, then and in each such case, immediately after the close of ~~cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary)~~business on such date, the Conversion Rate shall be increased so that the same shall equal the ~~rate~~ price determined by multiplying ~~such~~ the Conversion Rate in effect immediately prior to the close of business on ~~the~~ such record date ~~for such Triggering Distribution (a “Determination Date”)~~ by a fraction, : (i) the numerator of which shall be ~~such~~ equal to the Current Market Price ~~per share of the Common Stock~~ on ~~the Determination Date and~~ such record date, and (ii) the denominator of which shall be equal to the Current Market Price ~~per share~~ on the record date less an amount equal to the quotient of (x) the aggregate amount of the ~~Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock~~ cash distributed and (~~determined on the basis of~~ y) the number of shares of Common Stock outstanding ~~at the close of business~~ on the ~~Determination Date), such increase to become effective immediately prior to the opening~~ record date. Exhibit A Form of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination Date. Note 6 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~~ which would then be in effect if such ~~divided~~ dividend or distribution had not been declared. (7f) If In case the Issuer or any of its Subsidiaries pays holders of the shares of Common Stock in respect of a tender offer ~~made~~ or exchange offer, other than an odd-lot offer, by the ~~Company~~ Issuer or any of its Subsidiaries for ~~all or any portion~~ shares of Common Stock ~~shall expire, then, if~~ to the ~~tender offer shall require~~ extent that the cash and fair market value of any other consideration included in the payment ~~to stockholders of consideration~~ per share of Common Stock ~~having a Fair Market Value (determined as provided below) that~~ exceeds the ~~Closing~~ Sale Price per share of Common Stock on the Trading Day next succeeding the last date ~~(the “Expiration Date”)~~ on which tenders ~~could have been~~ or exchanges may be made pursuant to such tender offer or exchange offer (~~as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called~~ the “Expiration Time”), then, and in each such case, the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the ~~rate~~ price determined by multiplying the Conversion Rate in effect immediately prior to ~~the~~ close of business on the date of the Expiration ~~Date~~ Time by a ~~fraction~~ fraction: (i) the numerator of which ~~the numerator~~ shall be the sum of (Ax) the ~~Fair Market Value~~ fair market value (determined as aforesaid) of the aggregate consideration payable to ~~stockholders~~ shareholders based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (By) 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~~Shares) at the Expiration Time and the ~~Closing~~ Sale Price ~~per share~~ of the shares of Common Stock on the Trading Day next succeeding the Expiration ~~Date and~~ Time, and (ii) the denominator of which shall be ~~the product of~~ the number of shares of Common Stock outstanding (including ~~Purchased Shares but excluding~~ any ~~shares held in the treasury of the Company~~tendered or exchanged shares) at the Expiration Time multiplied by the ~~Closing~~ Sale Price ~~per share~~ of the shares of Common Stock on the Trading Day next succeeding the Expiration ~~Date~~Time. Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Issuer is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Issuer is permanently prevented by applicable law from effecting any such ipurchases 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 offer or exchange offer had not been made. (g) For purposes of this Section 8, the following terms shall have the meanings indicated:

Appears in 1 contract

Sources: Convertible Note Facility Agreement (Eco-Stim Energy Solutions, Inc.)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If~~ In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on its Common Stock exclusively in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be ~~increased~~ adjusted so that ~~the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by~~ a ~~fraction of which the numerator~~ Holder upon conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting~~ it would have been entitled to after such dividend or other distribution ~~and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any~~ if it had converted its Security immediately prior to such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 declaredother distribution. (2b) If In case the Company shall ~~subdivide~~ pay or make a dividend or other distribution on its ~~outstanding~~ Common Stock ~~into a greater number of shares~~consisting exclusively of, or ~~combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective~~ shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall otherwise issue ~~any rights~~ to all holders of its ~~outstanding~~ Common ~~Stock~~ Stock, rights, warrants or options entitling ~~them (~~the holders thereof, for a period ~~expiring within~~ not exceeding 45 ~~days after such distribution)~~ days, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in Section 12.04(g)) of the -------- Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ price of the total number of shares so offered would purchase at the current market price per share (determined as provided in Section 12.04(g)), such increase to become effective immediately -------- after the opening of business on the day following the date fixed for such determination. (c) In case outstanding shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which~~ shall be ~~determined by multiplying the~~ subdivided into a greater number of shares of Common ~~Stock issuable upon conversion of such convertible securities by~~ Stock, the Conversion ~~Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase~~ Rate in effect at the ~~Current Market Price per share~~ opening of ~~Common Stock~~ business on the day following the day upon which such ~~record date. Such adjustment~~ subdivision becomes effective shall be ~~made successively whenever any such rights are issued~~proportionately increased, ~~and shall become effective immediately after such record date. To the extent that~~ and, conversely, in case outstanding shares of Common Stock ~~(or securities convertible~~ shall each be combined into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the a smaller number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock~~securities, cash or ~~evidences of Indebtedness or other~~ assets (~~including securities) of the Company (~~excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, warrants or options referred to in Section ~~4.06(a)(3~~12.04(b), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or -------- distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such and any dividend or distribution ~~date (as if each Holder had converted such Security into Common Stock immediately prior~~ referred to in Section 12.04(a)), the ~~record date with respect to such distribution))~~ Conversion Rate shall be adjusted by multiplying --------- the Conversion Rate in effect immediately prior to the ~~record date fixed for the determination~~ earlier of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution ~~is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in Section 12.04(g)) and the denominator --------- shall be such current market price less the fair market value (as determined in good faith by the Board of ~~(A)~~ Directors, whose determination shall be conclusive and described in a Board Resolution), on the ~~average Closing Price~~ date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation PeriodStock, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day~~ day next following the later of (i) the date fixed for the payment of such distribution and (ii) the date 20 days after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect notice relating to such ~~distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed~~ distribution is given pursuant to ~~any rights plan that the Company implements after the~~ Section 12.06 (such later date of ~~this Indenture~~ (~~each a “Rights Plan”~~i) and (ii) ----- being referred to as the "Reference Date")~~, in lieu of any adjustment required by any other provision~~ . The provisions of this Section ~~4.06~~ 12.04(d) shall not be applicable to ~~the extent~~ an event covered by Section 12.04(j). For -------- -------- purposes of this Section 12.04(d) and Sections 12.04(a) and 12.04(b), any -------- -------- -------- dividend or distribution for which an adjustment is being made pursuant to this Section 12.04(d) that ~~such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the~~ also includes shares of Common Stock ~~issued upon conversion~~or rights, ~~the Rights described therein (whether~~ warrants -------- or ~~not the Rights have separated from the Common Stock at the time of conversion), subject~~ options to ~~the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the~~ subscribe for or purchase shares of Common Stock ~~in accordance with the provisions~~ shall be deemed instead to be (A) a dividend or distribution of the ~~Rights Plan and the Holders would not be entitled to receive any rights in respect~~ evidences of ~~the~~ indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock ~~issuable upon conversion of the Securities as a result of the timing of the Conversion Date~~or such rights, ~~the~~ warrants or options (making any Conversion Rate ~~will be adjusted as if the Company distributed to all holders~~ adjustment required by this Section 12.04(d)) immediately followed by (B) a -------- dividend or distribution of such shares of Common Stock ~~Distributed Securities~~ or such rights (making any further Conversion Rate adjustment required by Sections 12.04(a) or -------- 12.04(b)), except (1) the record date of such dividend or distribution as ~~provided~~ --------- defined in this Section 12.04(d) shall be substituted as "the ~~first paragraph~~ date fixed for the -------- determination of ~~clause~~ stockholders entitled to receive such dividend or other distributions", "the date fixed for the determination of stockholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of Sections 12.04(a) and 12.04(b) and (42) 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 this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a12.04(d). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights.-------- (6e) If In case the Company shall, by dividend or otherwise, ~~at any time distribute (~~make a ~~“Triggering Distribution”)~~ distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(e) has been made and (ii) the aggregate of any cash plus the -------- fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a ~~payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation~~Board Resolution), ~~dissolution or winding up~~ as of the ~~Company~~expiration of the tender or exchange offer referred to below, ~~whether voluntary~~ of consideration payable in respect of any tender or ~~involuntary~~exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(e) has been -------- made, exceeds 10% of the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock as of the -------- Trading Day immediately preceding the record date fixed for stockholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such record date, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate price determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the ~~Expiration Date~~ date fixed for the determination of the stockholders of record entitled to such distribution by a fraction of which (i) the denominator shall be the current market price per share (determined as provided in Section 12.04(g)) on such date less an amount -------- equal to the quotient of (x) the excess of such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the record date and (ii) the numerator shall be equal to the ~~sum~~ current market price on such date, such adjustment to become effective immediately prior to the opening of business on the day following the record date fixed for the payment of such distribution. (Af) In case a successful tender or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for all or any portion of the Common Stock shall involve an aggregate consideration having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that, together with (i) the ~~Fair Market Value~~ aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which no Conversion Rate adjustment pursuant to this Section 12.04(f) has been made and (ii) the -------- aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no Conversion Rate adjustment pursuant to Section 12.04(e) has been made, exceeds 10% of the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock outstanding (including any tendered -------- shares) on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, in each case, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction of which (i) the denominator shall be (x) the product of the current market price per share (determined as provided in Section 12.04(g)) of the Common Stock on the --------- Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (y) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and (Bii) the numerator shall be the product of (x) such current market price per share (determined in accordance with Section 12.04(g)) on the Trading Day next --------- succeeding the Expiration Time times (y) such number of outstanding shares ~~of Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company)~~ at the Expiration Time less the number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time. (g) For the purpose of any computation under Sections 12.04(b), (d) -------- --- and (e), the ~~Closing Price~~ current market price per share of Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices per share of Common Stock for the ten consecutive Trading Days immediately prior to the date in question; provided, however, that (i) if the "ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after -------- --- --- --- --- --- the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (ii) if the "ex" date for any Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the fraction by which the Conversion Rate is so required to be adjusted as a result of such Other Event, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.04(d) -------- or (e), whose determination shall be conclusive and described in a Board --- Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to one share of Common Stock. For the purpose of any computation under Section 12.04(f), the current market price per share of Common -------- Stock on any date in question shall be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days selected by the Company commencing on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or exchange offer requiring such computation and (iii) the date of the last amendment, if any, of such tender or exchange offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the Trading Day next succeeding the Expiration ~~Date and~~ Time of such tender or exchange offer (or, if such Expiration Time occurs before the ~~denominator~~ close of trading on a Trading Day, not later than the Trading Day during which ~~shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at~~ the Expiration Time ~~multiplied by~~ occurs); provided, however, that if the ~~Closing Price per share of~~ "ex" date for any Other Event (other than the ~~Common Stock~~ tender or exchange offer requiring such computation) occurs on or after the Commencement Date and on or prior to the Trading Day next succeeding the Expiration ~~Date~~Time for the tender or exchange offer requiring such computation, the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the reciprocal of the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender or exchange offer means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such tender or exchange offer. (h) In addition to those required by paragraphs (a), (b), (c), (d), --- --- --- --- (e) and (f) of this Section 12.04, to the extent permitted by applicable law, --- --- ----- the Co

Appears in 1 contract

Sources: Indenture (Transwitch Corp /De)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate applicable to any series of Securities shall be ~~adjusted from time~~ subject to ~~time by the Company~~ adjustment as follows: (1a) If In case the Company shall (i) pay a ~~dividend~~ dividend, or make a ~~distribution to all holders of outstanding Common Stock~~ distribution, in shares of Common Stock, on the Common Stock, (ii) subdivide the Outstanding Common Stock into a greater number of shares, (iii) combine the Outstanding Common Stock into a smaller number of shares, or (iv) reclassify the Common Stock, the Conversion Rate in effect immediately prior to thereto shall be adjusted so that the ~~record date~~ Holder of any Security thereafter surrendered for ~~the determination of stockholders~~ conversion shall be entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of the number of 36 42 shares of Common Stock ~~outstanding at~~ which such Holder would have owned or have been entitled to receive after the ~~close~~ happening of business on such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the ~~Company. The Company will not pay any dividend or make any distribution on Common Stock held in~~ events described above had such Security been converted immediately prior to the ~~treasury~~ happening of ~~the Company~~such event. If any dividend or distribution of the type described in ~~this~~ clause (i) above is ~~declared but~~ not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been declared~~. (2~~. An adjustment made pursuant to this Section 11.4(a) If shall become effective immediately after the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs dividend and shall become effective immediately after the effective date ~~upon which such subdivision~~ in the case of subdivision, combination or ~~combination becomes effective~~reclassification. (3b) If In case the Company shall issue ~~any rights~~ rights, options or warrants to all holders of any class or series of its ~~outstanding~~ Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights, options or warrants) to subscribe for or purchase ~~shares of~~ Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current~~ Average Closing Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on~~ at the record date for the determination of stockholders entitled to receive such ~~rights~~ rights, options or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the ~~rate~~ Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the date of the issuance of such ~~record date~~ rights, options or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at on the ~~close~~ date of ~~business on~~ issuance of such ~~record date~~ rights, options or warrants plus the number of additional shares of Common Stock offered (for subscription or ~~into which the convertible securities so offered are convertible)~~ purchase, and of which the denominator shall be the number of shares of Common Stock outstanding at on the ~~close~~ date of ~~business on~~ issuance of such ~~record date~~ rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the Current~~ such Average Closing Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the record date for the determination of the stockholders entitled to receive such ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate ~~that~~ which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights~~ rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate ~~that~~ which would then be in effect if ~~the~~ such record date for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any ~~rights~~ rights, options or warrants entitle the ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the Current~~ such Average Closing Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such ~~rights and any amount payable on exercise~~ rights, options or ~~conversion thereof~~warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If the ~~Company~~ foregoing adjustment, adequate provision shall ~~make a dividend or other distribution~~ be made so that each Holder shall have the right to ~~all holders~~ receive, upon conversion of ~~its Common Stock~~ such Holder's Securities, the amount of shares of its Capital Stock, other than Common Stock, or evidences of Indebtedness or other assets (including securities) of the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities ~~for distribution to the Holders of Securities on~~ such ~~dividend or distribution date (as if each~~ Holder would have received had such Holder converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities ~~so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business~~ on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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~~ which would then be in effect if such ~~dividend or~~ distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~11.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing ~~the Current~~ such Average Closing Market ~~Price of the Common Stock~~Price. Notwithstanding the ~~foregoing, if the securities distributed by the Company to all holders~~ foregoing provisions of ~~its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”~~this Section 11.4(c), ~~the Conversion Rate~~ no adjustment shall be ~~adjusted, unless~~ made thereunder for any distribution of Distributed Securities if the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate proper provision so that each Holder of ~~Securities shall have the right to receive upon conversion thereof the amount of~~ a Security who converts such ~~Spinoff Securities that~~ Security (or any portion thereof) after such ~~Holder of Securities would have received if such Securities had been converted on the~~ record date ~~with respect to~~ for such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not distribution shall be entitled to receive ~~any rights~~ upon such conversion, in ~~respect of~~ addition to the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount and kind of ~~cash so distributed~~ Distributed Securities that such Holder would have ~~received had~~ been entitled to receive if such Holder had, immediately prior to such record date, converted ~~each~~ such Security on for Common Stock; provided that, with respect to any Distributed Securities that are convertible, exchangeable or exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of such ~~Determination Date~~Security would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Security. In the event the Company implements a stockholder rights plan, such rights plan shall provide that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock issuable upon such ~~dividend or distribution is not so paid or made~~conversion, the ~~Conversion Rate shall again be adjusted~~ rights issued under such rights plan (notwithstanding the occurrence of an event causing such rights to be separate from the ~~Conversion Rate that would then be in effect if such divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of~~ Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately or prior to the ~~close~~ time of business on the Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iconversion).

Appears in 1 contract

Sources: Indenture (Peter Kiewit Sons Inc /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the 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 ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, (i) the numerator of which shall be ~~increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of~~ the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date plus~~ determination; and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ reduction to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 10.03(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the number of ~~additional~~ shares that the aggregate offering price of ~~Common Stock offered (or into which~~ the ~~convertible securities~~ total number of shares so offered ~~are convertible~~would purchase at such Current Market Price, and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ stockholders entitled to receive such ~~record date~~ rights or warrants plus ~~the number of shares which the aggregate offering price of~~ the total number of additional shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so~~ offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities, but excluding any rights or warrants referred to in Section 10.03(b) ~~of the Company (~~and excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~10.03(a) (any of the “foregoing hereinafter in this Section 10.03(d) called the "Distributed ~~Securities”~~Assets"), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such Distributed ~~Securities~~ Assets for distribution to the Holders upon the conversion of the Securities on so that any such ~~dividend or distribution date (as~~ 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 ~~each Holder~~ such holder had converted ~~such Security~~ its Securities into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value Record Date (as ~~determined by reference to the Current Market Price~~ defined in Section 10.03(h)(4) for such distribution of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record dateAssets). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ adjusted so that the same shall be equal to the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator~~ of which shall be the Current Market Price per share of the Common Stock on ~~the Determination~~ such Record Date less the ~~amount~~ fair market value (as determined by the Board of ~~such Triggering Distribution~~ Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Distributed Assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Rate shall be increased 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iStock; and

Appears in 1 contract

Sources: Indenture (Brinker International Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be ~~adjusted~~ subject to adjustments from time to time ~~by the Company~~ as follows: (1) If In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders~~ on shares of ~~outstanding Common Stock~~ any class of capital stock payable in shares of Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the day following the date fixed for the determination of ~~stockholders~~ shareholders entitled to receive such dividend or other distribution shall be increased ~~so that the same shall equal the rate determined~~ by ~~multiplying the~~ dividing such Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue any rights to all holders of its outstanding Common Stock entitling them (for a period expiring within 45 days after such distribution) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a Conversion Price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a)) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record~~ determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock (other than rights issued pursuant to the Rights Plan (as defined in paragraph (13) of this Section 12.4)) 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 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than 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 -77- the opening of business on the day following the date fixed for such determination shall be increased by 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 ~~additional~~ shares of Common Stock ~~offered (or into which~~ that the ~~convertible securities~~ aggregate of the offering price of the total number of shares of Common Stock so offered ~~are convertible)~~ for subscription or purchase would purchase at such current market price and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the ~~number of shares which the aggregate offering price of the total~~ number of shares of Common Stock so offered for subscription or ~~purchase (~~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 ~~aggregate conversion price~~ date the Board of Directors determines not to issue such rights, options or warrants, to the ~~convertible securities so offered for subscription~~ Conversion Rate that would have been in effect if the unexercised rights, options or ~~purchase~~warrants had never been granted or such determination date had not been fixed, ~~which shall be determined by multiplying~~ 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 ~~upon conversion~~ in respect of ~~such convertible securities by the Conversion Price per share~~ scrip certificates issued in lieu of fractions of shares of Common ~~Stock pursuant to the terms~~ Stock. The Company will not issue any rights, options or warrants in respect of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be made successively whenever any such rights are issued, and shall become effective immediately after such record date. To the extent that shares of Common Stock held in the treasury of the Company. (~~or securities convertible into~~ 3) In case outstanding shares of Common ~~Stock) are not delivered after the expiration of such rights, the Conversion Rate~~ Stock shall be ~~readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights been made on the basis of delivery of only the~~ subdivided into a greater number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such ~~rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase~~ subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock at shall be combined into a ~~price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total~~ smaller number of shares of Common ~~Stock so offered~~Stock, ~~there~~ 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 ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock, other than Common Stock, or evidences~~ any class of ~~Indebtedness~~ capital stock or other ~~assets~~ property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of ~~the Company (excluding (x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3)~~this Section, (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (zii) any dividend or distribution paid exclusively in ~~cash for which an adjustment was made pursuant to Section 4.06(a)(6)~~cash, (iii) ~~(the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such~~ any dividend or distribution ~~date~~ referred to in paragraph (1) of this Section, (iv) any consideration distributed in any merger or consolidation to which Section 12.11 applies), and (v) any rights issued pursuant to the Rights Plan (as ~~if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)~~defined in paragraph (13) of this Section 12.4) except as specified in paragraph (13) of this Section 12.4, the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on ~~such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after~~ the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in paragraph (8) of (Athis Section 12.4) ~~the average Closing Price~~ of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is on the date fixed for such determination less the then ~~listed or quoted~~ fair market value (~~such consecutive Trading Day period~~ as determined by the Board of directors, whose determination shall be ~~defined as~~ conclusive and described in a Board Resolution filed with the ~~“Spinoff Valuation Period”~~Trustee) ~~and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period~~ of the ~~Spinoff Securities multiplied by (ii)~~ portion of the ~~number~~ assets, shares or evidences of ~~Spinoff Securities~~ indebtedness so distributed ~~in respect of~~ applicable to one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If the Company shall, by dividend or otherwise, at any time distribute (a “Triggering Distribution”) to all holders of its Common Stock a payment consisting exclusively of cash (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such ~~Current Market Price~~ current market price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to become effective immediately prior to the opening of business on the day following the date ~~on which~~ fixed for the ~~Triggering Distribution is paid~~determination of stockholders entitled to receive such distribution. If ~~the amount of~~ after any such ~~Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Date~~date fixed for determination, ~~in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that~~ any such ~~Holder would have received had such Holder converted each Security on such Determination Date. In the event that such dividend or~~ distribution is not ~~so paid or~~ in fact made, the Conversion Rate shall ~~again~~ be ~~adjusted~~ immediately readjusted, effective as of the date of the Board of Directors determines not to be make such distribution, to the Conversion Rate that would ~~then be~~ have been in effect if such ~~divided or distribution~~ determination date had not been ~~declared~~fixed. (75) If In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (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 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 (5) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer ~~made~~ by the Company or any of its Subsidiaries for all or any portion of the Common Stock ~~shall expire, then, if~~ concluded within the 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 ~~offer shall require~~ amount") exceeds 10% of the ~~payment to stockholders~~ product of ~~consideration~~ the current market price per share ~~of Common Stock having a Fair Market Value~~ (determined as provided ~~below~~in paragraph (8) of this Section 12.4) ~~that exceeds~~ of the ~~Closing Price per share of~~ Common Stock on the ~~Trading Day next succeeding~~ date for the ~~last~~ 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 ~~“Expiration Date”) tenders could have been made pursuant to~~ "aggregate current market price"), then, and in each such ~~tender offer (as it may be amended) (~~case, immediately after the ~~last time at which~~ close of business on such ~~tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)~~date for determination, the Conversion Rate shall be ~~increased~~ 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 ~~Expiration Date~~ 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 ~~sum~~ current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (Ax) the ~~Fair Market Value~~ excess of such combined cash and tender amount over 10% 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 ~~aggregate consideration payable~~ Common Stock on such date fixed for determination. (6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Common Stock within 365-day period preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction (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 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,~~ 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 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 (Bb) a subdivision or combination, as the ~~product~~ case may be, 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (~~including Purchased Shares but excluding~~ 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 12.4). (8) For the purpose of any ~~shares held in~~ computation under paragraphs (2), (4), (5) or (6) of this Section 12.4, the ~~treasury of the Company) at the Expiration Time multiplied by the Closing Price~~ current market price per share of ~~the~~ Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Prices Per Share for the five consecutive Trading ~~Day next succeeding~~ Days selected by the ~~Expiration Date~~Company commencing not more than 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 icomputation. For purposes of this paragraph, the term

Appears in 1 contract

Sources: Indenture (Extreme Networks Inc)

Adjustment of Conversion Rate. (a) ~~The Conversion Rate shall be adjusted from time to time by the Company as follows: (1) If~~ In case the Company shall pay or make a dividend or ~~make a~~ other distribution ~~to all holders of outstanding~~ on its Common Stock exclusively in ~~shares of~~ Common Stock, the Conversion Rate in effect ~~immediately prior to~~ at the ~~record~~ opening of business on the earlier of the day next following such dividend or other distribution or the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be ~~increased~~ adjusted so that ~~the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by~~ a ~~fraction of which the numerator~~ Holder upon conversion shall be ~~the sum of the~~ entitled to receive that number of shares of Common Stock ~~outstanding at the close of business on such record date plus the total number of shares of Common Stock constituting~~ it would have been entitled to after such dividend or other distribution ~~and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any~~ if it had converted its Security immediately prior to such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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 declaredother distribution. (2b) If In case the Company shall ~~subdivide~~ pay or make a dividend or other distribution on its ~~outstanding~~ Common Stock ~~into a greater number of shares~~consisting exclusively of, or ~~combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective~~ shall be, in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall otherwise issue ~~any rights~~ to all holders of its ~~outstanding~~ Common ~~Stock~~ Stock, rights, warrants or options entitling ~~them (~~the holders thereof, for a period ~~expiring within~~ not exceeding 45 ~~days after such distribution)~~ days, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the ~~Current Market Price~~ current market price per share (determined as provided in Section 12.04(h)) of the Common Stock ~~(as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for the determination of stockholders entitled to receive such ~~rights~~ rights, warrants or ~~warrants~~options, the Conversion Rate in effect ~~immediately prior thereto~~ at the opening of business on the day following the date fixed for such determination shall be ~~adjusted so that the same shall equal the rate determined~~ increased by multiplying ~~the~~ such Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of ~~additional~~ shares of Common Stock ~~offered (or into which the convertible securities~~ so offered ~~are convertible)~~ for subscription or purchase and ~~of which~~ the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date~~ determination plus the number of shares of Common Stock which the aggregate ~~offering~~ price of the total number of shares so offered would purchase at the current market price per share (determined as provided in Section 12.04(h)), such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. (c) In case outstanding shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which~~ shall be ~~determined by multiplying the~~ subdivided into a greater number of shares of Common ~~Stock issuable upon conversion of such convertible securities by~~ Stock, the Conversion ~~Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase~~ Rate in effect at the ~~Current Market Price per share~~ opening of ~~Common Stock~~ business on the day following the day upon which such ~~record date. Such adjustment~~ subdivision becomes effective shall be ~~made successively whenever any such rights are issued~~proportionately increased, ~~and shall become effective immediately after such record date. To the extent that~~ and, conversely, in case outstanding shares of Common Stock ~~(or securities convertible~~ shall each be combined into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the a smaller number of shares of Common ~~Stock actually delivered. If such rights are not so issued~~Stock, the Conversion Rate ~~shall again be adjusted to be the Conversion Rate that would then be~~ in effect if at the ~~record date for~~ opening of business on the ~~determination of stockholders entitled to receive~~ day following the day upon which such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there combination becomes effective shall be ~~taken into account any consideration received by~~ proportionately reduced, such increase or reduction, as the ~~Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash~~case may be, to ~~be determined by~~ become effective immediately after the ~~Board~~ opening of ~~Directors~~business on the day following the day upon which such subdivision or combination becomes effective. (4d) If In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of ~~its Capital Stock~~any class of capital stock, ~~other than Common Stock~~securities, cash or ~~evidences of Indebtedness or other~~ assets (~~including securities) of the Company (~~excluding ~~(x)~~ any ~~issuance of rights for which an adjustment was made pursuant~~ rights, warrants or options referred to in Section ~~4.06(a)(3~~12.04(b), (y) dividends and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such and any dividend or distribution ~~date (as if each Holder had converted such Security into Common Stock immediately prior~~ referred to ~~the record date with respect to such distribution~~in Section 12.04(a)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted ~~so that the same shall equal the rate determined~~ by multiplying the Conversion Rate in effect immediately prior to ~~such record date by a fraction~~ the earlier of which the numerator shall be the Current Market Price per share of the Common Stock on such record date and of which the denominator shall be the Current Market Price per share on such record date less the fair market value (as determined by reference to the Current Market Price of the Distributed Securities) on such record date of the portion of the Distributed Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment shall be made successively whenever any such distribution ~~is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive such distribution by a ~~fraction,~~ fraction of which the numerator ~~of which~~ shall be the ~~sum~~ current market price per share (determined as provided in Section 12.04(h)) and the denominator shall be such current market price less the fair market value (as determined in good faith by the Board of ~~(A)~~ Directors, whose determination shall be conclusive and described in a Board Resolution), on the ~~average Closing Price~~ date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, securities, cash and assets so distributed applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation PeriodStock, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day~~ day next following the later of (i) the date fixed for the payment of such distribution and (ii) the date 20 days after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect notice relating to such ~~distribution.~~ distribution is given pursuant to Section 12.06 (5such later date of (i) ~~With respect~~ and (ii) being referred to ~~any rights or warrants (~~as the “~~Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan~~Reference Date”)~~, in lieu of any adjustment required by any other provision~~ . The provisions of this Section ~~4.06~~ 12.04(d) shall not be applicable to ~~the extent~~ an event covered by Section 12.04(k). For purposes of this Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or distribution for which an adjustment is being made pursuant to this Section 12.04(d) that ~~such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the~~ also includes shares of Common Stock ~~issued upon conversion~~or rights, ~~the Rights described therein (whether~~ warrants or ~~not the Rights have separated from the Common Stock at the time of conversion), subject~~ options to ~~the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the~~ subscribe for or purchase shares of Common Stock ~~in accordance with the provisions~~ shall be deemed instead to be (A) a dividend or distribution of the ~~Rights Plan and the Holders would not be entitled to receive any rights in respect~~ evidences of ~~the~~ indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock ~~issuable upon conversion of the Securities as a result of the timing of the Conversion Date~~or such rights, ~~the~~ warrants or options (making any Conversion Rate ~~will be adjusted as if the Company distributed to all holders~~ adjustment required by this Section 12.04(d)) immediately followed by (B) a dividend or distribution of such shares of Common Stock ~~Distributed Securities~~ or such rights (making any further Conversion Rate adjustment required by Sections 12.04(a) or 12.04(b)), except (1) the record date of such dividend or distribution as ~~provided~~ defined in this Section 12.04(d) shall be substituted as “the ~~first paragraph~~ date fixed for the determination of ~~clause~~ stockholders entitled to receive such dividend or other distributions”, “the date fixed for the determination of stockholders entitled to receive such rights, warrants or options” and “the date fixed for such determination” within the meaning of Sections 12.04(a) and 12.04(b) and (42) 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 this ~~Section 4.06(a~~12.04(d), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6e) If In case the Company shall, by dividend or otherwise, ~~at any time distribute (~~make a ~~“Triggering Distribution”)~~ distribution to all holders of its Common Stock exclusively in cash, the Company shall, in all cases, at the time of such distribution, make a cash payment ~~consisting exclusively~~ to the Holders of all outstanding Securities equal to the amount of cash ~~(excluding any dividend or~~ such Holder would have received with respect to such distribution ~~in connection with the liquidation, dissolution or winding up~~ for all of ~~the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying~~ its Securities had such ~~Conversion Rate in effect~~ Holder converted its Securities into Common Stock immediately prior to the close of business on the date fixed for the determination of the stockholders of record ~~date~~ entitled to such distribution. (f) In case a successful tender or exchange offer, other than an odd lot offer, made by the Company or any Subsidiary for ~~such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share~~ all or any portion of the Common Stock on shall involve an aggregate consideration having a fair market value (as determined in good faith by the ~~Determination Date and the denominator~~ Board of ~~which~~ Directors, whose determination shall be conclusive and described in a Board Resolution) at the ~~Current Market Price~~ last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) that exceeds the current market price per share (determined as provided in Section 12.04(h)) of the Common Stock outstanding (including any tendered shares) on the ~~Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of~~ Expiration Time times the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share (including any tendered shares) as of the Common Stock on the Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expireExpiration Time, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)in each case, the Conversion Rate shall be ~~increased so that the same shall equal the rate determined~~ adjusted by multiplying the Conversion Rate in effect immediately prior to the ~~close of business on the~~ Expiration ~~Date~~ Time by a fraction of which (i) the ~~numerator~~ denominator shall be ~~the sum of~~ (Ax) the ~~Fair Market Value~~ product of the current market price per share (determined as provided in Section 12.04(h)) of the Common Stock on the Trading Day next succeeding the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (y) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (Bii) the numerator shall be 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~~x) ~~at the Expiration Time and the Closing Price~~ such current market price per share ~~of Common Stock~~ (determined in accordance with Section 12.04(h)) on the Trading Day next succeeding the Expiration ~~Date and the denominator of which shall be the product of the~~ Time times (y) such number of outstanding shares ~~of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company)~~ at the Expiration Time ~~multiplied by~~ less the ~~Closing Price per share~~ number of Purchased Shares, such increase to become effective immediately prior to the opening of business on the day following the Expiration Time. (g) In case the September 30, 2008 Trailing Twelve Month Net Income shall be less than $0.00, the Conversion Rate shall be increased to 546.4481, which number shall be subject to adjustment from the date hereof as set forth in clauses (a) through (f) of this Section 12.04 (the “Operating Adjustment”); provided, however, that no Operating Adjustment shall occur in the event that the simple average of the ~~Common Stock~~ daily Volume-Weighted Average Price for the five Business Days immediately preceding the Operating Adjustment Determination Date and the five succeeding Business Days commencing on the ~~Trading Day next succeeding~~ Operating Adjustment Determination Date shall exceed one hundred twenty-five percent (125%) of the ~~Expiration~~ Conversion Price. The Operating Adjustment shall be effective, if at all, on the tenth business day following the Operating Adjustment Determination Date~~, such i~~.

Appears in 1 contract

Sources: Indenture (Transwitch Corp /De)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted (to the extent that a Conversion Termination has not occurred pursuant to the provisions of Section 4.2 of this Indenture) from time to time by the Company as follows: (1a) If In case the Company shall (i) pay a dividend ~~or make a distribution to all holders of outstanding~~ on its Common Stock in shares of Common Stock, ~~the Conversion Rate~~ (ii) make a distribution on its Common Stock in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date 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 such record date plus the total number of shares of Common Stock constituting such dividend or other distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall become effective immediately after such record date. For the purpose of this Section 4.06 and otherwise in this IndentureStock, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this clause 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. (2iii) ~~If the Company shall~~ subdivide its outstanding Common Stock into a greater number of shares, or (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have owned had such Security been converted immediately prior to the ~~day upon which~~ happening of such ~~subdivision or combination becomes~~ event. An adjustment made pursuant to this subsection (a) shall become effective ~~shall be,~~ immediately after the record date in the case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision dividend or ~~combination of the Common Stock occurs~~ distribution and shall become effective immediately after the effective date ~~upon which such~~ in the case of subdivision or ~~combination becomes effective~~combination. The Company will not pay any dividend on or make any distribution on shares of its Common Stock held in the treasury of the Company. (3b) If In case the Company shall issue ~~any~~ rights or warrants to all or substantially all holders of its ~~outstanding~~ Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring ~~within 45~~ not more than 60 days after such ~~distribution~~record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a ~~Conversion Price~~ conversion price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with ~~clause~~ subsection (8) e) of this Section ~~4.06(a)~~4.7) on the record date for the determination of stockholders entitled to receive such rights or warrants, the Conversion Rate in effect immediately prior thereto shall be adjusted so that the same shall equal the ~~rate~~ number determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the ~~close~~ Current Market Price per share (as defined in subsection (e) of ~~business~~ this Section 4.7) of Common Stock on such record date and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date). Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. To If at the ~~extent that~~ end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or securities convertible into Common Stock) are not delivered after the expiration of such rights, 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 been made on the basis of delivery of only the number of shares of Common Stock issuable upon conversion of convertible securities actually ~~delivered. If such rights are not so~~ issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if the record date for the determination of stockholders entitled to receive such rights had not been fixed. In determining whether any rights entitle the stockholders to subscribe for or purchase shares of Common Stock at a price less than the Current Market Price per share of Common Stock and in determining the aggregate offering price of the total number of shares of Common Stock so offered, there shall be taken into account any consideration received by the Company for such rights and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors). (4c) If In case the Company shall ~~make a dividend~~ distribute to all or ~~other distribution to~~ substantially all holders of its Common Stock of any shares of ~~its Capital Stock,~~ capital stock (other than dividends or distributions of Common ~~Stock~~Stock on Common Stock to which Section 4.7(a) applies) of the Company, or evidences of ~~Indebtedness~~ indebtedness or other assets (including ~~securities~~securities of any person other than the Company, but excluding all-cash distributions to which Section 4.7(d) applies or dividends or distributions referred to in subsection (a) of ~~the Company~~ this Section 4.7) or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (xb) ~~any issuance~~ of this Section 4.7 and also excluding the distribution of rights ~~for which an adjustment was made~~ to all holders of Common Stock pursuant to ~~Section 4.06(a)(3), (y) dividends and distributions in connection with~~ a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed Securities”stockholder rights plan), then in each such case (unless the Company distributes such Distributed Securities for distribution to the Holders of Securities on such dividend or distribution date (as if each Holder had converted such Security into Common Stock immediately prior to the record date with respect to such distribution)) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall equal the ~~rate~~ number determined by ~~multiplying~~ dividing the current Conversion Rate ~~in effect immediately prior to such record date~~ by a fraction of which the numerator shall be the Current Market Price per share (as defined in subsection (e) of this Section 4.7) of the Common Stock on ~~such~~ the record date ~~and of which the denominator shall be the Current Market Price per share on such record date~~ mentioned below less the fair market value on such record date (as determined by ~~reference~~ the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate delivered to the ~~Current Market Price of the Distributed Securities~~Trustee) ~~on such record date~~ of the portion of the ~~Distributed Securities~~ capital stock, evidences of indebtedness or other assets so distributed or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at on the ~~close~~ record date) and of ~~business~~ which the denominator shall be the Current Market Price per share (as defined in subsection (e) of this Section 4.7) of the Common Stock on such record date). Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. In the event that the Company implements a stockholder rights plan, such ~~dividend or distribution is not so paid or made~~rights plan shall provide, ~~the Conversion Rate shall again be adjusted~~ subject to ~~be the Conversion Rate~~ customary exceptions, that ~~would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined)~~ upon conversion of the ~~portion of~~ Securities the ~~Distributed Securities so distributed applicable~~ Holders will receive, in addition to ~~one share of Common Stock is equal to or greater than the Current Market Price per share of~~ the Common Stock on issuable upon such ~~record date,~~ conversion (including any shares delivered in ~~lieu~~ payment of the ~~foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right~~ Additional Conversion Payment pursuant to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 4.06(a)(4) 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. Notwithstanding the foregoing, if the securities distributed by the Company to all holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a Subsidiary or other business unit of the Company (the “Spinoff Securities”4.1), the Conversion Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities, so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date fixed for the determination of stockholders entitled to receive rights issued under such distribution by a fraction, the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after the date on which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share of Common Stock and the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the fifteenth Trading Day after the date on which ex-dividend trading commences; provided, however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distribution. (5) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan ~~that~~ (notwithstanding the ~~Company implements after the date~~ occurrence of ~~this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06~~ an event causing such rights to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated separate from the Common Stock at or prior to the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a ~~Rights Plan~~ stockholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants ~~pursuant to this Section 4.06(a). Other than as specified in this clause (5)~~ for the purposes of this Section ~~4.06(a~~4.7(c). Rights or warrants (other than rights issued pursuant to a stockholder rights plan) 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), ~~there will~~ 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 ~~any~~ deemed not to have been distributed for purposes of this Section 4.7(c)) (and no adjustment to the Conversion Rate under this Section 4.7(c) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 4.7(c), (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the ~~issuance~~ date of ~~any Rights~~such redemption or repurchase, and (2) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the ~~distribution of separate certificates representing~~ Conversion Rate shall be readjusted as if such ~~Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights~~rights and warrants had never been issued. (61) If In case the Company shall, by dividend or otherwise, at any time distribute (a “"Triggering Distribution”") to all or substantially all holders of its Common Stock all cash distributions in an aggregate amount that, together with the aggregate amount of (A) any cash and the 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) of any other consideration payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of payment ~~consisting exclusively~~ of the Triggering Distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 4.7 has been made and (B) all other cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the date of payment of the Triggering Distribution and in respect of which no Conversion Rate adjustment pursuant to this Section 4.7 has been made, exceeds an amount equal to 10% of the product of the Current Market Price per share of Common Stock (as determined in accordance with subsection (e) of this Section 4.7) on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Determination Date (excluding ~~any dividend or distribution~~ shares held in ~~connection with~~ the ~~liquidation, dissolution or winding up~~ treasury of the Company~~, whether voluntary or involuntary~~), the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the ~~rate~~ number determined by ~~multiplying~~ dividing such Conversion Rate in effect immediately prior to the ~~close of business on the record date for such Triggering Distribution (a “~~Determination ~~Date”)~~ Date by a ~~fraction,~~ fraction of which the numerator ~~of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which~~ shall be the Current Market Price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.7) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering ~~Distribution~~ Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding ~~at the close of business~~ on the Determination Date), and of which the denominator shall be such ~~increase~~ Current Market Price per share of the Common Stock (as determined in accordance with subsection (e) of this Section 4.7) on the Determination Date, such adjustment to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid~~. If~~ ; provided that, in the ~~amount~~ event the portion of ~~such Triggering Distribution~~ the cash so distributed applicable to one share of Common Stock is equal to or greater than ~~the~~ such Current Market Price per share of the Common ~~Stock on the Determination Date~~Stock, in lieu of the ~~foregoing adjustment~~foregoing, an adequate adjustment provision shall be made so that each ~~Holder~~ holder of ~~a Security~~ Securities shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each Security on immediately prior to such Determination 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 divided or distribution had not been declareddistribution. (72) If In case any tender offer made by the Company or any of its Subsidiaries for ~~all or any portion of~~ Common Stock shall ~~expire, then, if the~~ expire and such tender offer (as amended upon the expiration thereof) shall ~~require~~ involve the payment ~~to stockholders~~ of aggregate consideration ~~per share of Common Stock having a Fair Market Value~~ in an amount (determined as ~~provided~~ 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) that, together with the aggregate amount of (A) any cash and the 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) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for Common Stock consummated within the 12 months preceding the Expiration Date (as defined below) ~~that~~ and in respect of which no Conversion Rate adjustment pursuant to this Section 4.7 has been made and (B) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in respect of which no Conversion Rate adjustment pursuant to this Section 4.7 has been made, exceeds an amount equal to 10% of the ~~Closing~~ product of the Current Market Price per share of Common Stock ~~on the Trading Day next succeeding~~ (as determined in accordance with subsection (e) of this Section 4.7) as of the last date (the “"Expiration Date”") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “"Expiration Time”)") multiplied by 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, then, immediately prior to the opening of business on the day after the Expiration Date, the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the ~~rate~~ number determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to ~~the~~ close of business on the Expiration Date by a fraction of which the numerator 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 (e) of this Section 4.7) on the Trading Day next succeeding the Expiration Date, and of which the denominator shall be the sum of (Ax) ~~the Fair Market Value of~~ the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “"Purchased Shares”") and (By) 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 ~~Closing~~ Current Market Price per share of Common Stock ~~on the Trading Day next succeeding the Expiration Date and the denominator~~ (as determined in accordance with subsection (e) of ~~which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company~~this Section 4.7) ~~at the Expiration Time multiplied by the Closing Price per share of the Common Stock~~ on the Trading Day next succeeding the Expiration Date, such iadjustment 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 4.7(d)(2) 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 4.7(d)(2). (3) For purposes of this Section 4.7(d), the term "tender offer" shall mean and include both tender offers and exchange offer

Appears in 1 contract

Sources: Indenture (Cypress Semiconductor Corp /De/)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate ~~in effect immediately prior to the record date for the determination of stockholders entitled to receive such dividend or other distribution~~ shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution 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 the determination of stockholders entitled to receive such ~~record date~~ dividend or other distribution plus the total number of shares of Common Stock constituting such dividend or other ~~distribution and~~ distribution; and (ii) the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such ~~record date. Such adjustment shall be made successively whenever any~~ determination, such ~~dividend or distribution is made and shall~~ increase to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the ~~Company. The~~ Company ~~will not pay any~~ unless the Company pays such dividend or ~~make any~~ makes such distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 14.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock (as determined in accordance with clause (8) of this Section 4.06(a))~~ on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be ~~adjusted~~ increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ rights or warrants by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the number of shares of Common Stock outstanding on the date fixed for determination of stockholders entitled to receive such rights or warrants plus the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which shall be the sum of 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 ~~record date plus the number of additional shares of Common Stock offered (~~rights or ~~into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date~~ warrants plus the number of shares ~~which~~ that the aggregate offering price of the total number of shares ~~of Common Stock~~ so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at ~~the~~ such Current Market ~~Price per share of Common Stock on such record date~~Price. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~14.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6~~14.05(a) (any of the foregoing hereinafter in this Section 14.05(d)) (called the ~~“Distributed~~ "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to such distribution)~~Record Date) the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be ~~adjusted~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price ~~per share of the Common Stock~~ on such ~~record date and~~ Record Date; and (ii) the denominator of which ~~the denominator~~ shall be the Current Market Price ~~per share~~ on such ~~record date~~ Record Date less the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided that if the then fair market value (as ~~determined by reference to the Current Market Price of the Distributed Securities~~so determined) ~~on such record date~~ of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. ~~In the event that~~ If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section ~~4.06(a)(4~~14.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of on the ~~Common Stock~~applicable Record Date. Notwithstanding the foregoing, if the ~~securities~~ Securities distributed by the Company to all holders of its Common Stock consist of ~~Capital Stock~~ capital stock of, or similar equity interests in, a Subsidiary or other business ~~unit of the Company (the “Spinoff Securities”)~~unit, the Conversion Rate shall be ~~adjusted, unless the Company makes an equivalent distribution to the Holders of the Securities,~~ increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the ~~record date fixed for the determination of stockholders entitled~~ Record Date with respect to ~~receive~~ such distribution by a fraction, : (i) the numerator of which shall be the sum of (Ax) the average Closing Price of one share of Common Stock over the 10 ten consecutive Trading Day period (the "Spinoff Valuation Period") commencing on and including the fifth Trading Day after the date on which "ex-dividend ~~trading~~ trading" commences ~~for such distribution~~ on the Common Stock on the New York Stock ~~Exchange, NASDAQ Global Market~~ Exchange or such other ~~U.S.~~ national or regional exchange or market on which the Common Stock is then listed or quoted ~~(such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”)~~ and (~~B) the product of (i~~y) the average Closing Price over the Spinoff Valuation Period of the ~~Spinoff~~ portion of the Securities ~~multiplied by (ii) the number of Spinoff Securities~~ so distributed ~~in respect of~~ applicable to one share of Common ~~Stock and~~ Stock; and (ii) the denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening of business on the ~~fifteenth Trading Day after the date on which ex-dividend trading commences~~day following such Record Date; ~~provided, however,~~ provided that the Company may in lieu of the foregoing adjustment ~~elect to~~ make adequate provision so that each ~~Holder of Securities~~ Noteholder shall have the right to receive upon conversion ~~thereof~~ the amount of Securities such ~~Spinoff Securities that such Holder of Securities~~ holder would have received if had such ~~Securities had been~~ holder converted each note on the ~~record date~~ Record Date with respect to such distribution~~. (5) With respect to any rights~~ . Rights or warrants ~~(the “Rights”) that may be issued or~~ distributed ~~pursuant to any rights plan that~~ by the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock ~~Distributed Securities as provided~~ 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 ~~the first paragraph~~ respect of ~~clause (4)~~ future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause 14.05 (~~5) of this Section 4.06(a), there will not be any~~ and no adjustment to the Conversion Rate under this Section 14.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the ~~result~~ 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 ~~issuance~~ 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 ~~Rights~~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 14.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 14.05(d) and Section 14.01(a) and (b), any dividend or distribution to which this Section 14.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of ~~separate certificates representing~~ the evidences of indebtedness, assets or shares of capital stock other than such ~~Rights, the exercise~~ shares of Common Stock or ~~redemption~~ rights or warrants (and any Conversion Rate adjustment required by this Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such ~~Rights~~ shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 14.05(a) and (b) and (B) any shares of Common Stock included in ~~accordance with any Rights Plan~~ such dividend or distribution shall not be deemed "outstanding at the ~~termination or invalidation~~ close of ~~any Rights~~business on the date fixed for such determination" within the meaning of Section 14.05(a). (6e) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any cash dividend on its Common Stock to the extent that the aggregate percentage (calculated as the sum of the percentages that each dividend represents of the average of the daily Closing Sale Price of the Common Stock during the ten Trading Days immediately prior to the declaration date of such dividend) of all dividends declared during the twelve-month period through and including the applicable date of declaration does not exceed 5% and, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such Conversion Rate in effect immediately prior to the close of business on the record date for such Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall be such Current Market Price per share of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date), such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to or greater than the Current Market Price per share of the Common Stock on the Determination Datethen, in ~~lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion, the amount of cash so distributed that~~ such Holder would have received had such Holder converted each Security on such Determination 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 divided or distribution had not been declared. (7) If any tender offer made by the Company or any of its Subsidiaries for all or any portion of Common Stock shall expire, then, if the tender offer shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (determined as provided below) that exceeds the Closing Price per share of Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”)case, the Conversion Rate shall be increased 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 Expiration Date~~ such record date by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the ~~sum of~~ Current Market Price on such record date; and (Aii) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the ~~product~~ Current Market Price on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock, such adjustment to be effective immediately prior to the opening of business on the day following the record date; provided that if the portion of the ~~number of shares~~ cash so distributed applicable to one share of Common Stock ~~outstanding (including Purchased Shares but excluding any shares held~~ is equal to or greater than the Current Market Price on the record date, in ~~the treasury~~ lieu of the ~~Company) at~~ foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the ~~Expiration Time multiplied by~~ right to receive upon conversion the ~~Closing Price per share~~ amount of ~~the Common Stock~~ cash such holder would have received had such holder converted each Note on the ~~Trading Day next succeeding~~ record date. If such dividend or distribution is not so paid or made, the ~~Expiration Date~~Conversion Rate shall again be adjusted to 77 be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 14.05(e), such iadjustment shall be based upon the amount by which such distribution exceeds the amount permitted to be excluded pursuant hereto. (f) In case a tender or exc

Appears in 1 contract

Sources: Indenture (Triarc Companies Inc)

Adjustment of Conversion Rate. ~~(a)~~ The Conversion Rate shall be adjusted from time to time by the Company as follows: (1a) If In case the Company shall hereafter pay a dividend or make a distribution to all holders of the 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 ~~immediately prior to~~ at the ~~record~~ opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution by a fraction, (i) the numerator of which shall be ~~increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the sum of~~ the number of shares of the Common Stock outstanding at the close of business on the date fixed for such ~~record date plus~~ determination; and (ii) the denominator of which shall be the sum of such number of shares and the total number of shares ~~of Common Stock~~ constituting such dividend or other ~~distribution and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on~~ distribution, such ~~record date. Such adjustment shall be made successively whenever any such dividend or distribution is made and shall~~ reduction to become effective immediately after the opening of business on the day following the date fixed for such ~~record date~~determination. For the purpose of this ~~Section 4.06 and otherwise in this Indenture~~paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this ~~clause~~ Section 15.05(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) If the Company shall subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to the day upon which such subdivision or combination becomes effective shall be, in the In case of a subdivision of Common Stock, proportionately increased and, in the case of a combination of Common Stock, proportionately reduced. Such adjustment shall be made successively whenever any such subdivision or combination of the Common Stock occurs and shall become effective immediately after the date upon which such subdivision or combination becomes effective. (3) If the Company shall issue ~~any~~ rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 forty-five (45) days after the date fixed for determination of stockholders entitled to receive such ~~distribution~~rights or warrants) to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock)~~ at a price per share ~~(or having a Conversion Price per share)~~ less than the Current Market Price ~~per share of Common Stock~~ (as ~~determined in accordance with clause (8) of this Section 4.06(a)~~defined below) on the ~~record~~ date fixed for ~~the~~ determination of stockholders entitled to receive such rights or warrants, the Conversion Rate ~~in effect immediately prior thereto~~ shall be adjusted so that the same shall equal the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect immediately prior to the date fixed for determination of stockholders entitled to receive such ~~record date~~ 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 ~~record date~~ rights or warrants plus the number of ~~additional~~ shares that the aggregate offering price of ~~Common Stock offered (or into which~~ the ~~convertible securities~~ total number of shares so offered ~~are convertible~~would purchase at such Current Market Price, and (ii) ~~and~~ the denominator of which ~~the denominator~~ shall be the number of shares of Common Stock outstanding at on the ~~close~~ date fixed for determination of ~~business on~~ stockholders entitled to receive such ~~record date~~ rights or warrants plus ~~the number of shares which the aggregate offering price of~~ the total number of additional shares of Common Stock ~~so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so~~ offered for subscription or purchase, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the Conversion Price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share of Common Stock on such record date. Such adjustment shall be successively made ~~successively~~ whenever any such rights or warrants are issued, 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 ~~record date~~rights or warrants. To the extent that shares of Common Stock ~~(or securities convertible into Common Stock)~~ are not delivered after the expiration of such ~~rights~~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. If 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 ~~the record~~ 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 ~~stockholders~~ holders to subscribe for or purchase shares of Common Stock at ~~a price~~ less than ~~the~~ such Current Market ~~Price per share of Common Stock~~ Price, and in determining the aggregate offering price of ~~the total number of~~ such shares of Common ~~Stock so offered~~Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (4c) If 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 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. (d) In case the Company ~~shall make a~~ shall, by dividend or ~~other distribution~~ otherwise, distribute to all holders of its Common Stock of shares of ~~its Capital Stock, other than Common Stock,~~ any class of capital stock of the Company or evidences of ~~Indebtedness~~ its indebtedness or ~~other~~ assets (including securities~~) of the Company (~~, but excluding ~~(x)~~ any ~~issuance of~~ rights ~~for which an adjustment was made pursuant~~ or warrants referred to in Section ~~4.06(a)(3~~15.05(b), ~~(y) dividends~~ and distributions in connection with a reclassification, change, consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) excluding any dividend or distribution (x) paid exclusively in cash ~~for which an adjustment was made pursuant~~ or (y) referred to in Section ~~4.06(a)(6)~~15.05(a) (any of the ~~“Distributed~~ foregoing hereinafter in this Section 15.05(d) called the "Securities”")), ~~then~~ then, in each such case (unless the Company ~~distributes~~ elects to reserve such ~~Distributed~~ Securities for distribution to the ~~Holders~~ Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities on which such ~~dividend or distribution date (as~~ holder would have received if ~~each Holder~~ such holder had converted ~~such Security~~ its Notes into Common Stock immediately prior to the ~~record date with respect to~~ Record Date (as defined in Section 15.05(h)(4) for such ~~distribution~~distribution of the Securities)) ), the Conversion Rate ~~in effect immediately prior to the record date fixed for the determination of stockholders entitled to receive such dividend or distribution~~ shall be adjusted so that the same shall be equal to the rate determined by ~~multiplying~~ dividing the Conversion Rate in effect ~~immediately prior~~ on the Record Date with respect to such ~~record date~~ distribution by a ~~fraction~~ fraction, (i) the numerator of which ~~the numerator~~ shall be the Current Market Price per share of the Common Stock on such ~~record date and of which the denominator shall be the Current Market Price per share on such record date~~ Record Date less the fair market value (as determined by ~~reference to~~ the ~~Current Market Price~~ Board of Directors, whose determination shall be conclusive, and described in a resolution of the ~~Distributed Securities~~Board of Directors) on ~~such record date~~ the Record Date of the portion of the ~~Distributed~~ Securities so distributed applicable to one share of Common Stock; and (ii) the denominator of which shall be the Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock ~~(determined~~ is equal to or greater than the Current Market Price of the Common Stock on the ~~basis~~ Record Date, in lieu of the ~~number of shares of Common Stock outstanding at the close of business on such record date). Such adjustment~~ foregoing adjustment, adequate provision shall be made ~~successively whenever any such distribution is made and~~ so that each Noteholder shall ~~become effective immediately after~~ have the ~~record date for the determination of stockholders entitled~~ right to receive upon conversion the amount of Securities such ~~distribution~~holder would have received had such holder converted each Note on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion 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 then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such Holder would have received had such Holder converted each Security on such record date. If the Board of Directors determines the ~~Fair Market Value~~ fair market value of any distribution for purposes of this Section ~~4.06(a)(4~~15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. ~~Notwithstanding the foregoing, if the securities~~ Rights or warrants distributed by the Company to all holders of ~~its~~ Common Stock ~~consist~~ entitling the holders thereof to subscribe for or purchase shares of ~~Capital Stock of~~the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.05 (and no adjustment to the Conversion Rate under this Section 15.05 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.05(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or ~~similar equity interests in, a Subsidiary~~ any Trigger Event or other ~~business unit~~ event (of the ~~Company~~ 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 15.05 was made, (1) in the ~~“Spinoff Securities”)~~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 ~~adjusted~~readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, ~~unless~~ as the ~~Company makes an equivalent distribution to the Holders of the Securities~~case may be, ~~so that the same shall be~~ as though it were a cash distribution, equal to the ~~rate determined~~ per share redemption or repurchase price received by ~~multiplying~~ 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 77 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 15.05(d) in ~~effect~~ respect of rights or warrants distributed or deemed distributed on any Trigger Event to the ~~record~~ extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Sections 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of 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 15.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 15.05(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such ~~distribution by a fraction~~dividend or other distribution", ~~the numerator of which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the fifth Trading Day after~~ "the date ~~on which ex-dividend trading commences~~ fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such ~~distribution on~~ determination" within the ~~New York Stock Exchange~~meaning of Sections 15.05(a) and (b), NASDAQ Global Market or such other U.S. national or regional exchange or market on which the Common Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the “Spinoff Valuation Period”) and (B) ~~the product of (i) the average Closing Price over the Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities distributed in respect of one share~~ any shares of Common Stock ~~and~~ included in such dividend or distribution shall not be deemed "outstanding at the ~~denominator of which shall be the average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such adjustment to become effective immediately prior to the opening~~ close of business on the ~~fifteenth Trading Day after~~ date fixed for such determination" within the ~~date on which ex-dividend trading commences; provided, however, that the Company may in lieu~~ meaning of the foregoing adjustment elect to make adequate provision so that each Holder of Securities shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities would have received if such Securities had been converted on the record date with respect to such distributionSection 15.05(a). (5e) With respect to any rights or warrants (the “Rights”) that may be issued or distributed pursuant to any rights plan that the Company implements after the date of this Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any conversion, the Holders of Securities will receive, with respect to the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in and in accordance with any such Rights Plan; provided that if, at the time of conversion, however, the Rights have separated from the shares of Common Stock in accordance with the provisions of the Rights Plan and the Holders would not be entitled to receive any rights in respect of the shares of Common Stock issuable upon conversion of the Securities as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Stock Distributed Securities as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate readjustment in the event of the expiration, redemption, termination or repurchase of the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result of the issuance of any Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the termination or invalidation of any Rights. (6) If In case the Company shall, by dividend or otherwise, ~~at any time~~ distribute ~~(a “Triggering Distribution”)~~ to all holders of its Common Stock ~~a payment consisting exclusively of~~ cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Rate pursuant to this Section 15.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.05(h)) during the ten Trading Days (as defined in Section 15.05(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be ~~increased~~ adjusted so that the same shall equal the rate determined by ~~multiplying such~~ dividing the Conversion Rate in effect immediately prior to the close of business on such record date by a fraction, (i) the numerator of which shall be the Current Market Price of the Common Stock on the record date ~~for such Triggering Distribution~~ less the amount of cash so distributed (~~a “Determination Date”~~and not excluded as provided above) ~~by a fraction~~applicable to one share of Common Stock, and (ii) the ~~numerator~~ denominator of which shall be such Current Market Price ~~per share~~ of the Common Stock on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock on the Determination Date less the amount of such Triggering Distribution applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding at the close of business on the Determination Date)Stock, such ~~increase~~ adjustment to ~~become~~ be effective immediately prior to the opening of business on the day following the ~~date on which~~ record date; provided, however, that in the ~~Triggering Distribution is paid. If~~ event the ~~amount~~ portion of ~~such Triggering Distribution~~ the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price ~~per share~~ of the Common Stock on the ~~Determination Date~~record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each ~~Holder of a Security~~ Noteholder shall have the right to receive upon ~~conversion,~~ conversion the amount of cash ~~so distributed that~~ such ~~Holder~~ holder would have received had such ~~Holder~~ holder converted each ~~Security~~ Note on ~~such Determination Date~~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 ~~divided~~ dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 15.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution. (7f) ~~If any~~ In case a tender or exchange offer made by the Company or any ~~of its Subsidiaries~~ Subsidiary for all or any portion of the Common Stock shall ~~expire, then, if~~ expire and such tender or exchange offer (as amended upon the ~~tender offer~~ expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a ~~Fair Market Value~~ fair market value (as determined ~~as provided below~~by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that ~~exceeds the Closing Price per share~~ as of ~~Common Stock on the Trading Day next succeeding~~ the last ~~date~~ time (the “"Expiration ~~Date”~~Time") tenders ~~could have been~~ or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) (exceeds the last ~~time at which such tenders could have been made~~ reported sale price of the Common Stock (determined as provided in the definition of Current Market Price) on the ~~Expiration Date is hereinafter sometimes called~~ Trading Day next succeeding the “Expiration Time”), the Conversion Rate shall be ~~increased~~ 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 Expiration Date by a fraction of which the numerator shall be the sum of (A) the Fair Market Value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (B) 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 Closing Price per share of Common Stock on the Trading Day next succeeding the Expiration Date and the denominator of which shall be the product of the number of shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading Day next succeeding the Expiration Date, such iEx

Appears in 1 contract

Sources: Indenture (Kulicke & Soffa Industries Inc)

Common use of Adjustment of Conversion Rate Clause in Contracts