Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows: (a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuance;
Appears in 3 contracts
Sources: Indenture (Northstar Realty Finance Corp.), Indenture (Northstar Realty Finance Corp.), Indenture (Northstar Realty)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If Host REIT issues the Parent Guarantor issues shares of Host REIT Common Stock as a dividend or distribution on the Host REIT Common Stock to all holders of Host REIT Common Stock, or if the Parent Guarantor Host REIT effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × x OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution distribution, or the effective date of such share split or share combination, as applicable; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 OS0 = the number of shares of Host REIT Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Host REIT Common Stock outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the Ex-Dividend Date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Host REIT distributes to all holders of Host REIT Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Host REIT Common Stock or securities convertible into Common Stock within 45 for a period of not more than forty-five (45) days after the date of issuance thereof, in either case at an exercise price per share of Host REIT Common Stock or a conversion price per share less than the Closing Sale Price of the Host REIT Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × x (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Host REIT Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuancedistribution; X = the total number of shares of Host REIT Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Host REIT Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Host REIT Common Stock for the ten (10) consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Host REIT Common Stock at less than the applicable Closing Sale Price of the Host REIT Common Stock, and in determining the aggregate exercise or exchange price payable for such Host REIT Common Stock, there shall be taken into account any consideration received by Host REIT for such rights, warrants or options and any amount payable on exercise or exchange thereof, with the value of such consideration, if other than cash, to be determined by Host REIT’s Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or exchanged prior to the expiration of the exerciseability or exchangeability thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If Host REIT distributes capital stock, evidences of indebtedness or other assets or property of Host REIT to all holders of Host REIT Common Stock, excluding:
(i) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x SP0/(SP0 - FMV) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Host REIT Common Stock for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Host REIT Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Host REIT Common Stock on the earlier of the record date or the Ex-Dividend Date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of Host REIT is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Exchangeable Debentures shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of Host REIT are distributed to holders of Host REIT Common Stock, for each Exchangeable Debenture, the amount of shares of capital stock, evidences of indebtedness or other assets or property of Host REIT such holder of Exchangeable Debentures would have received had such holder of Exchangeable Debentures owned a number of shares of Host REIT Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such distribution, and the aggregate principal amount of Exchangeable Debentures held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall be made successively whenever any such distribution is made and shall become effective on the Ex-Dividend Date for such distribution. If Host REIT distributes to all holders of Host REIT Common Stock capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of Host REIT (a “Spin-Off”), the Exchange Rate in effect immediately before the tenth Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 x (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the tenth Trading Day from, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the tenth Trading Day from, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Host REIT Common Stock applicable to one share of Host REIT Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Host REIT Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the tenth Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the ten (10) Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If Host REIT makes any cash dividend or distribution to all holders of outstanding Host REIT Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of Host REIT) during any calendar quarter in an amount per share that, together with other cash dividends or distributions made during such calendar quarter exceeds $0.20 (the “Reference Dividend”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x SP0 /(SP0 - C) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Host REIT Common Stock for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the day prior to the Ex-Dividend Date for such distribution; and C = the aggregate amount in cash per share that Host REIT distributes to holders of Host REIT Common Stock in a calendar quarter that exceeds the Reference Dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Exchangeable Debentures shall have the right to receive on the date such cash is distributed to holders of Host REIT Common Stock, for each Exchangeable Debenture, the amount of cash such holder of Exchangeable Debentures would have received had such holder of Exchangeable Debentures owned a number of shares of Host REIT Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such dividend or distribution, and the aggregate principal amount of Exchangeable Debentures held by such Holder and the denominator of which is one thousand ($1,000). Notwithstanding the foregoing, the Exchange Rate will only be adjusted for that portion of the adjustment required by this paragraph (d) for which no adjustment to the Exchange Rate has yet been made. An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend shall be subject to adjustment on account of any of the events set forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Exchange Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the Exchange Rate as adjusted.
(e) If Host REIT or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Host REIT Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Host REIT Common Stock exceeds the Closing Sale Price of a share of Host REIT Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x (AC + (SP1 x OS1))/(SP1 x OS0) where ER0 = the Exchange Rate in effect at the close of business on the last Business Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires; ER1 = the new Exchange Rate in effect immediately following the last Business Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by Host REIT’s Board of Directors) paid or payable for the Host REIT Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Host REIT Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Host REIT Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Host REIT Common Stock pursuant to such tender offer or exchange offer); and SP1 = the average of the Closing Sales Prices of the Host REIT Common Stock for the ten (10) consecutive Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) will occur on the tenth Trading Day from and including the Trading Day next succeeding the Effective Date of the tender offer or exchange offer; provided that in respect of any exchange within the ten (10) Trading Days following the Trading Day next succeeding the Effective Date of the tender offer or exchange offer, references within this paragraph (e) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between Trading Day next succeeding the Effective Date of such tender offer or exchange offer and the exchange date in determining the Applicable Exchange Rate. If Host REIT or one of its Subsidiaries is obligated to purchase Host REIT Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) If Host REIT has in effect a stockholder’s rights plan while any Exchangeable Debentures remain outstanding, Holders of Exchangeable Debentures will receive, upon an exchange of Exchangeable Debentures in respect of which the Company elects to deliver any Net Shares, in addition to such Net Shares, rights under Host REIT ‘s stockholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Host REIT Common Stock. If the rights provided for in the stockholder’s rights plan adopted by Host REIT have separated from the Host REIT Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Exchangeable Debentures would not be entitled to receive any rights in respect of any Net Shares, if any, that the Company elects to deliver upon an exchange of Exchangeable Debentures, the Exchange Rate will be adjusted at the time of separation as if Host REIT had distributed, to all holders of Host REIT Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights.
(g) Notwithstanding anything in this Section 6.05, in no event will the Exchange Rate exceed one hundred (100) shares of Host REIT Common Stock per $1,000 principle amount of Exchangeable Debentures (the “Maximum Exchange Rate”), other than as a result of proportional adjustments to the Exchange Rate, pursuant to clauses (a), (b) and (c) above.
(h) In addition t
Appears in 2 contracts
Sources: Supplemental Indenture (Host Hotels & Resorts, Inc.), Supplemental Indenture (Host Hotels & Resorts L.P.)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER’ = ER0 × OS1/x OS’ OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 ER’ = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for after such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuanceevent; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; and OS’ = the Ex-Dividend Date number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the record date fixed for such determination. If any dividend or distribution of the type described in this Section 8.04(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 Exchange Rate shall be 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: ER’ = ER0 x OS0 + X OS0 + Y ER0 = the Exchange Rate in effect immediately prior to such event; ER’ = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event;
Appears in 2 contracts
Sources: Second Supplemental Indenture (Prologis, L.P.), Second Supplemental Indenture (Amb Property Lp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER′ = ER0 × OS1/x OS′ OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS’ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER′ = ER0 × (x OS0 + X)/(OS0 X OS0 + Y) Y where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 2 contracts
Sources: Third Supplemental Indenture (Prologis, L.P.), Third Supplemental Indenture (Amb Property Lp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER’ = ER0 × OS1/x OS’ OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 ER’ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS’ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: ER’ = ER0 x OS0 + X OS0 + Y where ER0 = the Exchange Rate in effect immediately prior to such event; ER’ = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; X = the total number of shares of Common Stock issuable pursuant to such rights, warrants or convertible securities; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the Last Reported Sale Prices per share of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date (or, if later, the Ex-Date relating to such distribution) for the issuance of such rights, warrants or convertible securities. Such adjustment shall be successively made whenever any such rights, warrants or convertible securities are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. If such rights, warrants or convertible securities are not so exercised prior to their expiration, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such record date for such distribution had not been fixed. In determining whether any rights, warrants or convertible securities entitle the holder thereof to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by Parent for such rights, warrants or convertible securities 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.
(c) In case Parent shall distribute to all or substantially all holders of its Common Stock shares of Capital Stock, evidences of its indebtedness or other assets or property of Parent (including securities, but excluding dividends and distributions covered by Section 8.04(a), Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such case the Exchange Rate shall be adjusted based on the following formula: ER’ = ER0 x ▇▇▇ ▇▇▇ - FMV where ER0 = the Exchange Rate in effect immediately prior to such distribution; ER’ = the Exchange Rate in effect immediately after such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date for such distribution (or, if earlier, the Ex-Date relating to such distribution); and FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property distributed with respect to each outstanding share of Common Stock on the record date for such distribution (or, if earlier, the Ex-Date relating to such distribution). Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution; 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 is equal to or greater than SP0 as set forth above, in lieu of the 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 exchange, the amount of Distributed Property such Holder would have received had such Holder owned a number of shares of Common Stock equal to the Exchange Rate on the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) . If the Board of Directors determines the fair market value of any distribution for purposes of this Section 8.04(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 determining SP0 above. With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment of a dividend or other distribution on the Common Stock in shares of Capital Stock, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), unless the Company or Parent Guarantor issues distributes such shares of Capital Stock or equity interests to each Noteholder on the same basis as such Noteholder would have received had it exchanged its Notes solely into shares of Common Stock immediately prior to such dividend or distribution, the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula: ER’ = ER0 x FMV0 + MP0 MP0 where ER0 = the Exchange Rate in effect immediately prior to such distribution; ER’ = the Exchange Rate in effect immediately after such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of shares of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off; provided that in respect of any exchange within the ten Trading Days following any Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such lesser number of Trading Days as have elapsed between such Spin-Off and the Exchange Date in determining the applicable Exchange Rate. Rights or warrants distributed by Parent to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of Common 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 shares of Common Stock, shall be deemed not to have been distributed for purposes of this Section 8.04 (and no adjustment to the Exchange Rate under this Section 8.04 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 Exchange Rate shall be made under this Section 8.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this First Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 8.04 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 Exchange 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 any rights, warrants, options or other securities entitling them for a period as of not more than 45 days after the date of issuance thereof 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 Exchange Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 8.04(a) or securities convertible into Common Section 8.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital Stock within 45 days after the issuance thereof, in either case at an exercise price per share other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies (and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a conversion price per share less than the Closing Sale Price dividend or distribution of such shares of Common Stock on or such rights or warrants (and any further Exchange Rate adjustment required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall then be made), except (A) the Business Day immediately preceding the time of announcement record date of such issuancedividend or distribution shall be substituted as “the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a) and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to such event” within the meaning of Section 8.04(a).
(d) In case Parent shall pay a dividend or make a distribution consisting exclusively of cash to all or substantially all holders of its Common Stock to the extent that the aggregate of all such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount for such quarter, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER’ = ER0 × (OS0 + X)/(OS0 + Y) x SP0 -T SP0 - C where ER0 = the Exchange Rate in effect immediately prior to the record date for such distribution; ER’ = the Exchange Rate in effect immediately after the record date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the period of ten consecutive Trading Days ending the Business Day immediately preceding the record date (as defined in clause (f) of this Section) for such distribution (or, if earlier, the Ex-Date relating to such distribution); T = the dividend threshold amount (“Dividend Date Threshold Amount”), which amount shall initially be $1.0305 per quarter and which shall be appropriately adjusted from time to time for any stock dividends on, or subdivisions or combinations of, Common Stock; provided, that if an Exchange Rate adjustment is required to be made as a result of a distribution that is not a quarterly dividend either in whole or in part, the Dividend Threshold Amount shall be deemed to be zero; and C = the amount in cash per share that Parent distributes to holders of Common Stock. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the record date for such issuancedividend or distribution; ER1 provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than SP0 above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon exchange of a Note (or any portion thereof) the amount of cash such Holder would have received had such Holder owned a number of shares equal to the Exchange Rate on the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any reclassification of the Common Stock, as a result of which the Notes become exchangeable into more than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this Section 8.04(d), references in this Section to one share of Common Stock or Last Reported 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 exchangeable equal to the number 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.
(e) In case Parent or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for all or any portion of the shares of Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Exchange Rate shall be increased based on the following formula: ER’ = ER0 x AC + (SP’ x OS’) SP’ x OS0 where ER0 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for date such issuancetender or exchange offer expires; OS0 ER’ = the number of shares of Common Stock outstanding immediately prior to Exchange Rate in effect on the Ex-Dividend Date for day next succeeding the date such issuance;tender or exchange
Appears in 2 contracts
Sources: First Supplemental Indenture (Prologis, L.P.), First Supplemental Indenture (Amb Property Lp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor issues shares of In case Archstone-S▇▇▇▇ Trust shall issue Common Stock Shares as a dividend or distribution on to Holders of the outstanding Common Stock to all holders Shares, or shall effect a subdivision into a greater number of Common Stock, Shares or if the Parent Guarantor effects combination into a share split or share combinationlower number of Common Shares, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER’ = ER0 × OS1/OS0 x OS’ where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 ER’ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; OS0 = the number of shares of Common Stock Shares outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS’ = the number of shares of Common Stock Shares outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(a) is declared but not so paid or made, or the outstanding Common Shares are not subdivided or combined, as the case may be, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Trustees determines not to pay such dividend or distribution, or subdivide or combine the outstanding Common Shares, as the case may be, to the Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the Parent Guarantor issues In case Archstone-S▇▇▇▇ Trust shall issue to all holders or substantially all Holders of its outstanding Common Stock any Shares rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case Shares at an exercise price per share of Common Stock or a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock Shares on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER’ = ER0 × (x OS0 + X)/(OS0 X OS0 + Y) Y where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuanceevent; ER1 ER’ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuanceevent; OS0 = the number of shares of Common Stock Shares outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 2 contracts
Sources: Third Supplemental Indenture (Archstone Smith Operating Trust), Third Supplemental Indenture (Archstone Smith Operating Trust)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER′ = ER0 × OS1/x OS′ OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS′ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER′ = ER0 × (x OS0 + X)/(OS0 X OS0 + Y) Y where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Prologis, L.P.), Fourth Supplemental Indenture (Amb Property Lp)
Adjustment of Exchange Rate. The Issuer shall adjust the Exchange Rate shall be adjusted from time to time by for the Issuer as followsfollowing events:
(a) If the Parent Guarantor issues shares of Common Stock Shares as a dividend or distribution on the Common Stock to all holders of Common StockShares generally, or if the Parent Guarantor effects a share split or share combinationcombination with respect to its Common Shares, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination, as the case may be; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date Effective Date of such share split or share combination, as applicablethe case may be; ER1 OS0 = the Exchange Rate in effect number of Common Shares outstanding immediately prior to the open of business on and immediately after the Ex-Dividend Date for such dividend or distribution or the Effective Date of such share split or share combination; and OS1 = the number of Common Shares that would be outstanding immediately after, and solely as a result of, such dividend, distribution, share split or share combination, as the case may be. Any adjustment made under this clause (a) shall become effective date immediately after the open of business on such Ex-Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph clause (a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of its Common Stock Shares generally any rights, warrants, options or other securities warrants entitling them to purchase, for a period of not more than 45 calendar days after or less from the declaration date of issuance thereof to subscribe for or purchase such distribution, Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case Shares at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock Shares on the Business Trading Day immediately preceding preceding, but excluding, the time of announcement of declaration date for such issuancedistribution, the Exchange Rate will shall be adjusted increased based on the following formula (provided that formula: ER1 = the Exchange Rate will be readjusted to in effect immediately after the extent that open of business on the Ex-Date for such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where distribution; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock Shares outstanding immediately prior to the open of business on the Ex-Dividend Date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (Nabors Industries LTD)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ER0× OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × ER0× (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuance; X = the number of shares of Common Stock issuable pursuant to such rights, warrants, options, other securities or convertible securities; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Common Stock for the ten consecutive Trading Days prior to the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. For purposes of this paragraph (b), in determining whether any rights, warrants, options, other securities or convertible securities entitle the Holders to subscribe for or purchase or exercise a conversion right for Common Stock at less than the average Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Guarantor for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant, option, other security or convertible security described in paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the exchange rate that would then be in effect if such right, warrant, option, other security or convertible security had not been so issued.
(c) If the Guarantor distributes shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor to all holders of Common Stock, excluding:
(1) dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in paragraph (a) or (b) above;
(2) dividends or distributions paid exclusively in cash; and
(3) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0× SP0/(SP0 - FMV) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the ten consecutive Trading Days prior to the Business Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution; With respect to an adjustment pursuant to this paragraph (c), where there has been a payment of a dividend or other distribution on Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0× (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the effective date of the Spin-Off; ER1 = the Exchange Rate in effect on and immediately after the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first ten consecutive Trading Days after the effective date of the Spin-Off. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If following the date of original issuance of the Securities, the Guarantor makes any cash dividend or distribution to all holders of Common Stock in aggregate amount that, together with other cash dividends or distributions during such quarterly fiscal period, on a per share basis, exceeds $0.36 (the “Reference Dividend”) the Exchange Rate will be adjusted based on the following formula: ER1 = ER0× SP0 /(SP0 - C) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the period of the ten consecutive Trading Days ending on the Business Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Common Stock during such quarterly fiscal period in excess of the Reference Dividend. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend for any adjustment to the Exchange Rate under this paragraph (d).
(e) If the Guarantor or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0× (AC + (SPI× OS1))/(SP1× OS0) where ER0 = the Exchange Rate in effect on the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the day next succeeding the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender offer or exchange offer); and SP1 = the average of the Closing Sale Price of the Common Stock for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. If the Guarantor or one of its subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer, but it or such subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) Notwithstanding the foregoing, in no event shall the adjustments arising under paragraph (d) or (e) of this Section 4.04 cause the Exchange Rate to exceed 75.4717 per $1,000 principal amount of Securities, subject to the adjustments in paragraphs (a), (b) and (c) of this Section 4.04.
(g) If the Guarantor adopts a shareholder rights plan while any Securities remain outstanding, Holders of Securities will receive, upon an exchange of Securities for shares of Common Stock, in addition to Common Stock, rights under such shareholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by the Guarantor have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Securities would not be entitled to receive any rights in respect of Common Stock issuable upon exchange of the Securities, the Exchange Rate will be adjusted at the time of separation as if the Guarantor had distributed, to all holders of Common Stock, shares of capital stock, evidences of indebtedness or other assets or property pursuant to Section 4.04(c) hereof, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In lieu of any such adjustment, the Guarantor may amend such applicable shareholder rights agreement to provide that upon exchange of Securities, the Holders will receive, in addition to Common Stock issuable upon such exchange, the rights which would have attached to such Common Stock if the rights had not become separated from the Common Stock under such shareholders rights plan.
(h) In addition to the adjustments pursuant to paragraphs (a) through (g) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of the capital stock of the Guarantor resulting from any dividend or distribution of capital stock (or rights to acquire shares of Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Guarantor. If the Issuer makes such determination, it will be conclusive and the Issuer shall mail to Holders a notice of the increased Exchange Rate at least 15 days prior to the date the increased Exchange Rate takes effect in accordance with applicable law and such notice shall state the increased exchange rate and the period during which it will be in effect. The Issuer shall not make any adjustment to the Exchange Rate if Holders are permitted to participate in the dividend, distribution or transaction, on an as-exchanged basis, in the transactions in this Section 4.04.
(i) Notwithstanding anything to the contrary contained herein, the applicable Exchange Price and Exchange Rate will not be adjusted upon certain events, including but not limited to:
(1) 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 Issuer or those of the Guarantor and the investment of additional optional amounts in shares of Common Stock under any plan;
(2) the issuance of any shares of Common Stock or Issuer partnership units or options or rights to purchase those shares or units pursuant to any present or future employee, director, trustee or consultant benefit plan, employee agreement or arrangement or program of the Issuer or the Guarantor;
(3) the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Securities were first issued;
(4) a change in the par value of the Common Stock;
(5) accumulated and unpaid dividends or distributions; and
(6) as a result of a tender offer solely to holders of less than 100 shares of Common Stock; and
(7) for the avoidance of doubt, the issuance of limited partnership units by the Issuer and the issuance of the Common Stock or the payment of cash upon redemption thereof.
(j) No adjustment in the applicable Exchange Price will be required unless the adjustment would require an increase or decrease of at least 1% of the applicable Exchange Price. If the adjustment is not made because the adjustment does not change the Exchange Price by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, upon exchange of the Securities, upon required repurchases of the Securities in connection with a Change in Control pursuant to Section 3.01, upon redemption of the Securities pursuant to Section 11.01 and five Business Days prior to the Final Maturity Date, all adjustments not previously made shall be made. Except as specifically described above, the applicable Exchange Price shall not be subject to adjustment in the case of the issuance of any shares of Common Stock or the Guarantor’s preferred shares, or securities exchangeable for or convertible into common stock or the Guarantor’s preferred shares.
(k) Whenever the Exchange Rate is adjusted as herein provided, the Guarantor or the Issuer shall as promptly as reasonably practicable file with the Trustee and any Exchange Agent other than the Trustee an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Guarantor or the Issuer shall prepare a notice
Appears in 1 contract
Sources: Indenture (Northstar Realty)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/x OS1 OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend Date, or effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the immediately prior to such Ex-Dividend Date for such dividend Date, or distribution or the effective date of such share split or share combination, as applicable, as if combination but after giving effect to such dividend, distribution, share split or combination occurred at that timeshare combination. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced.
(b) If the Guarantor distributes to all, or substantially all, holders of Common Stock any rights, warrants or options entitling them for a period of not more than 60 days after the date of issuance thereof to subscribe for or purchase Common Stock for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock less than the average of the Closing Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x (OS0 + X) (OS0 +Y) where ER0= the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such distribution; X = the number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Trading Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued. For purposes of this Section 13.03(b) and for the purpose of Section 13.01(b)(iii)(A), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Guarantor for such 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.
(c) If the Guarantor distributes shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor to all, or substantially all, holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraphs (a) or (b) of this Section 13.03;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x ▇▇▇ (▇▇▇-▇▇▇) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of Common Stock over 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 in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution; provided that if “FMV” with respect to any distribution of shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor are distributed to holders of Common Stock, for each Note, the amount of shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction (x) the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such distribution, and the aggregate principal amount of Notes held by such Holder and (y) the denominator of which is $1,000. With respect to an adjustment to the Exchange Rate made pursuant to this clause (c), where there has been a payment of a dividend or other distribution of Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate in effect immediately before the Close of Business on the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 x (FMV0+MP0) MP0 where ER0 = the Exchange Rate in effect immediately prior to the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after, and including, the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following, and including, the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the applicable Exchange Rate. If any dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 13.03(c) (and subject in all respect to Section 13.03(f)), rights, options or warrants distributed by the Guarantor to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Guarantor’s Capital Stock, including Common 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 the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 13.03(c) (and no adjustment to the Exchange Rate under this Section 13.03(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or 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 13.03(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 13.03(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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, 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 purchase, 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 Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued. For purposes of 13.03(a), Section 13.03(b) and this Section 14.03(c), if any dividend or distribution to which this Section 13.03(c) is applicable also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 13.03(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 13.03(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 13.03(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 13.03(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 13.03(a) and Section 13.03(b) with respect thereto shall then be made, except that, if determined by the Guarantor, (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date, or effective date” within the meaning of Section 13.03(a) or “outstanding immediately prior to the Open of Business on the Ex-Dividend Date” within the meaning of Section 13.03(b).
(d) If the Guarantor makes any cash dividend or distribution to all, or substantially all, holders of outstanding Common Stock, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x ▇▇▇ (▇▇▇-▇) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate immediately after the Ex-Dividend Date for such distribution; SP0 = the Closing Sale Price of Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Common Stock; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such Holder would have received had such Holder owned a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(be) If the Parent Guarantor issues to all holders or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any rights, warrants, options or other securities entitling them for a period of not more than 45 days after consideration included in the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price payment per share of Common Stock or a conversion price per share less than exceeds the Closing Sale Price of a share of Common Stock on the Business Trading Day immediately preceding next succeeding the time of announcement of last date on which tenders or exchanges may be made pursuant to such issuancetender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × x (OS0 + X)/(OS0 + YAC+(SP1 x OS1)) (SP1 x OS0) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for Close of Business on the date such issuancetender or exchange offer expires; ER1 = the Exchange Rate in effect immediately following the Close of Business on the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and immediately after any other consideration (as determined by the Ex-Dividend Date Board of Directors) paid or payable for the Common Stock purchased in such issuancetender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for Expiration Time on the date such issuance;tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the Expiration Time on the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender offer or exchange offer); and SP1 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires. The adjustment to the exchange rate under the preceding paragraph shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any exchange within 10 Trading Days immediately following, and including, the expiration date of any tender or exchange offer, references with respect to 10 Trading Days shall be deemed rep
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS′ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER′ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 1 contract
Adjustment of Exchange Rate. The Issuer shall adjust the Exchange Rate shall be adjusted from time to time by for the Issuer as followsfollowing events:
(a) If the Parent Guarantor issues shares of Common Stock Shares as a dividend or distribution on the Common Stock to all holders of Common StockShares generally, or if the Parent Guarantor effects a share split or share combinationcombination with respect to its Common Shares, the Exchange Rate will shall be adjusted based on the following formula: where, ER1 = ER0 × OS1/OS0 where the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination, as the case may be; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date Effective Date of such share split or share combination, as applicablethe case may be; ER1 OS0 = the Exchange Rate in effect number of Common Shares outstanding immediately prior to the open of business on and immediately after the Ex-Dividend Date for such dividend or distribution or the Effective Date of such share split or share combination; and OS1 = the number of Common Shares that would be issued and outstanding immediately after, and solely as a result of, such dividend, distribution, share split or share combination, as the case may be. Any adjustment made under this clause (a) shall become effective date immediately after the open of business on such Ex-Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph clause (a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of its Common Stock Shares generally any rights, warrants, options or other securities warrants entitling them to purchase, for a period of not more than 45 calendar days after or less from the declaration date of issuance thereof to subscribe for or purchase such distribution, Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case Shares at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock Shares on the Business Trading Day immediately preceding preceding, but excluding, the time of announcement of declaration date for such issuancedistribution, the Exchange Rate will shall be adjusted increased based on the following formula (provided that formula: where ER1 = the Exchange Rate will be readjusted to in effect immediately after the extent that open of business on the Ex-Date for such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where distribution; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock Shares that would issued and outstanding immediately prior to the open of business on the Ex-Dividend Date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (Nabors Industries LTD)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of the Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (BioMed Realty Trust Inc)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where Where: ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend date, or effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the immediately prior to such Ex-Dividend Date for such dividend date, or distribution or the effective date of such share split or share combination, as applicable, as if combination but after giving effect to such dividend, distribution, share split or combination occurred at that timeshare combination. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all all, or substantially all, holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 60 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price Prices of Common Stock on over the Business 10 consecutive Trading Day period immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuancedistribution; X = the number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Trading Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Guarantor distributes shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor to all, or substantially all, holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraphs (a) or (b) of this Section 13.06;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × SP0/(SP0 – FMV) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of Closing Sale Prices of Common Stock over 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 in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the Record Date or the Ex-Dividend Date for such distribution; provided that if “FMV” with respect to any distribution of shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor are distributed to holders of Common Stock, for each Note, the amount of shares of Capital Stock, evidences of indebtedness or other assets or property of the Guarantor such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). With respect to an adjustment to the Exchange Rate made pursuant to this clause (c), where there has been a payment of a dividend or other distribution of Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate in effect immediately before the Close of Business on the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after, and including, the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following, and including, the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the applicable Exchange Rate. If any dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Guarantor makes any cash dividend or distribution to all, or substantially all, holders of outstanding Common Stock, other than regular quarterly cash dividends that do not exceed $0.555 per share of Common Stock (the “Reference Dividend”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ▇▇▇ /(▇▇▇ – C) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate immediately after the Ex-Dividend Date for such distribution; SP0 = the Closing Sale Price of Common Stock on the Trading Day immediately preceding the earlier of the record date or the day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Common Stock that exceeds the Reference Dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such Holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount shall be subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment shall be made to the Reference Dividend amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a regular quarterly dividend, the Reference Dividend will be deemed to be zero.
(e) If the Guarantor or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1))/(SP1 × OS0) where ER0 = the Exchange Rate in effect on the day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second Trading Day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender offer or exchange offer); and SP1 = the average Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires. The adjustment to the exchange rate under the preceding paragraph shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided, that in respect of any exchange within 10 Trading Days immediately following, and including, the expiration date of any tender or exchange offer, references with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and the Exchange Date in determining the applicable Exchange Rate. If the Guarantor or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) If the Guarantor has in effect a rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes, in addition to Common Stock, if any, rights under the Guarantor’s stockholder rights agreement unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by the Guarantor have separated from the Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any shares of Common Stock delivered upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if the Guarantor had distributed, to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Notes are permitted to participate in the transactions described in this Section 13.06 on a basis equivalent to that which would apply if the Notes were exchanged entirely for Common Stock at the then-applicable Exchange Rate. If, however, the application of the foregoing formulas would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate shall be made (other than as a result of an adjustment pursuant to Section 13.06(a)). Notwithstanding anything to the contrary contained herein, the applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Issuer or those of the Guarantor and the investment of additional optional amounts in the Common Stock under any plan;
(ii) the issuance of any Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director, trustee or consultant benefit plan, employee agreement or arrangement or program of the Issuer or the Guarantor;
(iii) the issuance of any Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Notes were first issued;
(iv) a change in the par value of the Common Stock;
(v) accumulated and unpaid dividends or distributions; and
(vi) the issuance of Units by the Issuer and the issuance of the Common Stock or the payment of cash upon redemption thereof. Adjustments to the applicable Exchange Rate shall be calculated to the nearest 1/10,000th of a share. The Issuer shall not be required to make an adjustment in the Exchange Rate unless the adjustment would require an increase or decrease of at least 1% of the Exchange Rate. However, the Issuer shall carry forward any adjustments that are less than 1% of the Exchange Rate and shall make such carried forward adjustments, irrespective of whether the aggregate adjustment is less than 1%, upon any exchange, a Designated Event or redemption. Except as set forth above in this Article 13, the Exchange Rate shall not be adjusted. Whenever the Exchange Rate is adjusted as herein provided, the Guarantor or the Issuer shall as promptly as reasonably practicable file with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Guarantor or the Issuer shall prepare a notice of such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Exchange Rate to the Holders of the Notes within 20 Business Days of the Effective Date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. For purposes of this Section
Appears in 1 contract
Sources: Indenture (Kilroy Realty Corp)
Adjustment of Exchange Rate. (a) The Company will adjust the Exchange Rate shall be adjusted from time to time by if the Issuer as followsfollowing events occur:
(a1) If the Parent Guarantor issues shares of Common Stock Shares as a dividend or distribution on the Common Stock Shares to all holders of the Common StockShares, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where x OS1 where, ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution distribution, or the effective date of such share split or share combination, as applicable; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution distribution, or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock Shares outstanding on immediately prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock Shares outstanding on immediately after the Ex-Dividend Date for such dividend or distribution, as if such dividend or distribution occurred at that time, or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph clause (a1) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such the dividend or distribution had not been declared.
(b2) If the Parent Guarantor issues to all holders of Common Stock Shares any rights, warrants, options or other securities entitling them for a period of not more than 45 60 days after the date of issuance thereof to subscribe for or purchase Common Stock Shares, or issues to all holders of Common Shares securities convertible into Common Stock within 45 Shares for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock Shares or a conversion an exchange price per share Common Share less than the Closing Sale Price of the Common Stock Shares on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (x OS0 + X)/(OS0 X OS0 + Y) where Y where, ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancethe distribution; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancethe distribution; OS0 = the number of shares of Common Stock Shares outstanding immediately prior to the Ex-Dividend Date for such issuancethe distribution;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER' = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS¢ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Trustees 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER¢ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 1 contract
Sources: Supplemental Indenture (Prologis)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company if any of the following events occurs, except that the Company shall not make any adjustments to the Exchange Rate if Holders of the Notes are entitled to participate (other than in the case of (x) a Share Election Merger, (y) a share split or share combination or (z) a tender or exchange offer), at the same time and upon the same terms as follows:holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to exchange their Notes, as if they held a number of shares of Common Stock equal to the Exchange Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. 84
(a) If the Parent Guarantor Reference Entity exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock to all holders of Common Stock, or if the Parent Guarantor Reference Entity effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where where, ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for of such dividend or distribution distribution, or immediately prior to the effective date open of business on the Split/Combination Effective Date of such share split or share combination, as applicable; ER1 ER' = the Exchange Rate in effect on and immediately after the open of business on such Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableSplit/Combination Effective Date; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Split/Combination Effective Date (before giving effect to any such dividend, distribution, split or combination); and OS' = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the effective date open of business on the Split/Combination Effective Date for such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph (aSection 14.04(a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Reference Entity determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor Reference Entity issues to all or substantially all holders of the Common Stock any rights, warrants, options or warrants (other securities than pursuant to a stockholder rights or similar plan) entitling them them, for a period of not more than 45 calendar days after the announcement date of issuance thereof such issuance, to subscribe for or purchase shares of the Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise a price per share of Common Stock or a conversion price per share that is less than the Closing average of the Last Reported Sale Price Prices of the Common Stock on for the Business 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rightsformula: where, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; ER1 ER' = the Exchange Rate in effect on and immediately after the open of business on such Ex-Dividend Date for such issuanceDate; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date for such issuanceDate;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor issues In case Boston Properties shall issue shares of Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER´ = ER0 × OS1/x OS´ OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 ER´ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS´ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Boston Properties shall issue to all or substantially all holders of its outstanding shares of Common Stock rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: ER´ = ER0 x OS0 + X OS0 + Y where ER0 = the Exchange Rate in effect immediately prior to such event; ER´ = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; X = the total number of shares of Common Stock issuable pursuant to such rights, warrants or convertible securities; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date (or, if earlier, the Ex-Dividend Date) for the issuance of such rights, warrants or convertible securities. Such adjustment shall be successively made whenever any such rights, warrants or convertible securities are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. If such rights, warrants or convertible securities are not so exercised prior to their expiration, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such record date for such distribution had not been fixed. In determining whether any rights, warrants or convertible securities entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by Boston Properties for such rights, warrants or convertible securities and any amount payable on exercise or exchange thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case Boston Properties shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of Boston Properties (other than Common Stock as covered by Section 8.04(a)), evidences of its indebtedness or other assets or property of Boston Properties (including securities, but excluding dividends and distributions covered by Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such case the Exchange Rate shall be adjusted based on the following formula: ER´ = ER0 x ▇▇▇ ▇▇▇ – FMV where ER0 = the Exchange Rate in effect immediately prior to such distribution; ER´ = the Exchange Rate in effect immediately after such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the Record Date for such distribution (or, if earlier, the Ex-Dividend Date); and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the record date for such distribution (or, if earlier, the Ex-Dividend Date). Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution; 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 is equal to or greater than SP0 as set forth above, in lieu of the 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 exchange, the amount of Distributed Property such holder would have received had such holder owned a number of shares of Common Stock equal to the Exchange Rate on the Record Date. If such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) . If the Parent Guarantor issues Board of Directors determines the fair market value of any distribution for purposes of this Section 8.04(c) by reference to all holders 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 determining SP0 above. With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment of Common Stock any rights, warrants, options a dividend or other securities entitling them for a period of not more than 45 days after distribution on the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common shares of Capital Stock within 45 days after the issuance thereofof any class or series, in either case at an exercise price per share or similar equity interest, of Common Stock or relating to a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuanceSubsidiary or other business unit (a “Spin-Off”), the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of stockholders entitled to receive the distribution will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER´ = ER0 × (OS0 x FMV0 + X)/(OS0 + Y) MP0 MP0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER´ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off; provided that in respect of any exchange within the ten Trading Days following any Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such lesser number of Trading Days as have elapsed between such Spin-Off and the exchange date in determining the applicable Exchange Rate. Rights or warrants distributed by Boston Properties to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of Boston Properties’ Capital Stock, including Common 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 outstanding immediately prior 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 8.04 (and no adjustment to the Ex-Dividend Date for such issuance;Exchange Rate under this
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor Issuer issues shares of Common Stock as a dividend or distribution on shares of the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER’= ER0 × OS1/OS’ OS0 where where, ER0 ER’ = = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = event the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; event OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 event OS’ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 15.05(a) is declared but not so paid or made, the Exchange Rate shall again be readjusted adjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor Issuer issues to all or substantially all holders of its Common Stock any rights, warrants, options rights or other securities warrants entitling them such holders for a period of not more than 45 calendar days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or Stock, at a conversion price per share less than the Closing Last Reported Sale Price of Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula formula: ER’=ER0 × OS0 + X OS0 + Y where, ER0 ER’ = = the Exchange Rate in effect immediately prior to such event the Exchange Rate in effect immediately after such event OS0 = the number of shares of Common Stock outstanding immediately prior to such event X = the total number of shares of Common Stock issuable pursuant to such rights or warrants Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights divided by the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the Stock Record Date for the issuance of such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. To the extent that shares of Common Stock are not delivered prior to the expiration of such rights or warrants, the Exchange Rate shall be readjusted to the Exchange 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 Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale 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 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 Company’s Board of Directors.
(provided that c) If the Issuer distributes shares of its capital stock, evidences of its indebtedness or other assets or property of the Issuer to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in clause (a) or (b) above; and
(ii) dividends or distributions paid exclusively in cash; then the Exchange Rate will be readjusted adjusted based on the following formula: ER’=ER0 × ▇▇▇ ▇▇▇ – FMV where, ER0 = the Exchange Rate in effect immediately prior to such distribution ER’ = the extent that Exchange Rate in effect immediately after such rightsdistribution SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such distribution FMV = the fair market value (as determined by the Company’s Board of Directors) of the shares of capital stock, warrantsevidences of indebtedness, optionsassets or property distributed with respect to each outstanding share of Common Stock on the Stock Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other securities or convertible securities are not exercised or converted business unit (a “Spin-Off”) the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Stock Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula: ER’=ER0 × FMV0 + MP0 MP0 where, ER0 = the Exchange Rate in effect immediately prior to such distribution ER’ = the expiration Exchange Rate in effect immediately after such distribution FMV0 = the average of the exercisability Last Reported Sale Prices of the capital stock or convertibility thereof): ER1 similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off MP0 = ER0 the average of the Last Reported Sale Prices of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off.
(d) If the Issuer makes any cash dividend or distribution during any of the Issuer’s quarterly fiscal period to all or substantially all holders of Common Stock, the Exchange Rate will be adjusted based on the following formula: ER’=ER0 × (OS0 + X)/(OS0 + Y) where ▇▇▇ ▇▇▇ – C where, ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Stock Record Date for such issuance; ER1 dividend or distribution ER’ = the Exchange Rate in effect immediately after the Stock Record Date for such dividend or distribution SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such dividend or distribution C = the amount in cash per share the Issuer dividends or distributes to holders of Common Stock. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the date for such determination.
(e) If the Issuer or any of its subsidiaries purchases shares of Common Stock pursuant to a tender or exchange offer which involves an aggregate per share consideration that exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (such last date, the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER’=ER0 × AC + (SP’×OS’) OS0 × SP’ where, ER0 = the Exchange Rate in effect on the date such tender or exchange offer expires ER’ = the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the aggregate value of all cash and immediately after any other consideration (as determined by the Ex-Dividend Date Company’s Board of Directors) paid or payable for shares purchased in such issuance; tender or exchange offer OS0 = the number of shares of Common Stock outstanding immediately prior to the Exdate such tender or exchange offer expires OS’ = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires SP’ = the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the Issuer is obligated to purchase shares pursuant to any such tender or exchange offer, but the Issuer is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made. If, however, the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made.
(f) Notwithstanding the foregoing provisions of this 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 exchange, for any distribution described therein if the holder will otherwise participate in the distribution without exchange of such holder’s Notes.
(g) The Company may (but is not required to) make such increases in the Exchange Rate, in addition to those required by clauses (a) through (e) of this Section 14.05 as the Company’s 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 in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Exchange Rate by any amount for any period of at least 20 days if the Company’s 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.
(h) All calculations under this Article 14 shall be made by the Company and shall be made to the nearest cent or to the nearest one-Dividend ten thousandth (1/10,000) of a share, as the case may be. The Company will not be required to make an adjustment in the Exchange Rate unless the adjustment would require a change of at least 1% in the Exchange Rate. However, the Company will carry forward any adjustments that are less than 1% of the Exchange Rate and make such carried forward adjustments, regardless of whether aggregate adjustment is less than 1% within one year of the first such adjustment carried forward, upon redemption, upon a Fundamental Change or upon the Stated Maturity. To the extent the Notes become exchangeable into cash, assets or property (other than capital stock of the Issuer or securities to which Section 14.06 or 14.07 applies), no adjustment shall be made thereafter pursuant to this Section 14.05 as to the cash, assets or property.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting forth the Exchange 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 Exchange Rate and may assume that the last Exchange 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 Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective. The Company or, at the Company’s request after the Company has prepared and delivered such notice to the Trustee, the Trustee in the name and at the expense of the Company, shall notify the holders of the adjustment to the Exchange Rate in the manner provided in Section 16.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(j) In any case in which this Section 14.05 provides that an adjustment shall become effective immediately after (1) a record date or Stock Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to Section 14.05(a), (3) a date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to Section 14.05(b) or (4) the Expiration Time for any tender or exchange offer pursuant to Section 14.05(e), (each a “Determination Date”), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note exchanged after such issuance;Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such exchange by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such exchange before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 14.03. For purposes of this Section 14.05(j), the term “Adjustment Event” shall mean:
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Adjustment of Exchange Rate. The Exchange Rate shall will be adjusted from as described in this Section 4.04, except that no adjustment to the Exchange Rate will be made for a given transaction if Holders of the Notes will participate in that transaction, without exchange of the Notes, on the same terms and at the same time as a holder of a number of shares of Common Stock equal to time the principal amount of a Holder’s Notes (expressed in thousands) multiplied by the Issuer as follows:Exchange Rate would participate.
(a) If the Parent Guarantor TERP issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock to all holders of Common Stock, or if TERP subdivides or combines the Parent Guarantor effects a share split or share combinationCommon Stock, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/x OS1 OS0 where where, ER0 = the Exchange Rate in effect immediately to the Close of Business on the Record Date of such dividend or distribution, or immediately prior to the Ex-Dividend Date for such dividend or distribution or Open of Business on the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Close of Business on such Record Date for of such dividend or distribution distribution, or immediately after the Open of Business on the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Ex-Dividend such Record Date for of such dividend or distribution, before giving effect to such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of common stock, as the case may be. Any adjustment made under this clause (a) will become effective immediately after the Close of Business on the Ex-Dividend Record Date for such dividend or distribution (regardless of whether the dividend or distribution is scheduled to occur after the Maturity Date), or immediately after the Open of Business on the effective date of such share split subdivision or share combinationcombination of Common Stock, as applicable, as if the case may be. If such dividend, distribution, split subdivision or combination occurred at that time. If any dividend or distribution described in this paragraph clause (a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Directors of TERP or a duly authorized committee thereof determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(b) If the Parent Guarantor issues a Record Date occurs for a distribution to all or substantially all holders of the Common Stock of any rights, warrants, options or other securities warrants entitling them them, for a period of not more than 45 60 calendar days after from the announcement date of issuance thereof for such distribution, to subscribe for or purchase shares of the Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either case at an exercise price per share of Common Stock or a conversion price per share less than the average of the Closing Sale Price Prices of the Common Stock on for the Business 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the time of announcement of date for such issuancedistribution, the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (x OS0 + X)/(OS0 X OS0 + Y) where Y ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Close of Business on the Record Date for such issuancedistribution; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Close of Business on such Record Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on such Record Date for such distribution, before giving effect to such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any increase made under this clause (b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution, regardless of whether the distribution date is scheduled to occur after the Maturity Date. To the extent that such rights, options or warrants expire prior to the Maturity Date and shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such 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, options or warrants were scheduled to be distributed prior to the Maturity Date and are not so distributed, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect if the Record Date for such distribution had not occurred. For purposes of this Section 4.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock for each Trading Day in the applicable 10 consecutive Trading-Day period, there shall be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company or a duly authorized committee thereof.
(c) If a Record Date occurs for a distribution (the “Relevant Distribution”) of shares of the TERP’s Capital Stock, evidences of the TERP’s indebtedness or other assets or property of TERP or rights, options or warrants to acquire the TERP’s Capital Stock or other securities, to all or substantially all holders of Common Stock (excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected under clause (a) or (b) above; (ii) dividends or distributions paid exclusively in cash; and (iii) Spin-Offs), then the Exchange Rate will be increased based on the following formula: ER1 = ER0 x ▇▇▇ ▇▇▇ - FMV where, ER0 = the Exchange Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; ER1 = the Exchange Rate in effect immediately after the Close of Business on such Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day-period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such issuance;distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors of the Company or a duly authorized committee thereof) of the shares of Capital Stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under the above portion of this clause (c) will become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment pursuant to the above formula will result in a decrease of the Exchange Rate. However, if such distribution is scheduled to be paid or made prior to the Maturity Date and is not so paid or made, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to exchange its Notes, the amount and kind of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. In the case of rights, options or warrants, if such rights, options or warrants are not so issued, or if no such rights, options or warrants are exercised prior to their expiration, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if the Ex-Dividend Date for the distribution of such rights, options or warrants had not occurred. With respect to an adjustment pursuant to this clause (c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where, ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the first 10 consecutive Trading-Day period commencing on, and including, the Ex-Dividend Date for the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of Common Stock over the Valuation Period. The adjustment to the applicable Exchange Rate under the preceding paragraph of this clause (c) will be determined on the last day of the Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off. In respect of any exchange during the Valuation Period for any Spin-Off, references within this clause (c) related to 10 Trading Days shall be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the relevant Exchange Date. For purposes of the second adjustment formula set forth in this Section 4.04(c), (i) the Closing Sale Price of any Capital Stock or similar equity interest shall be calculated in a manner analogous to that used to calculate the Closing Sale Price of the Common Stock in the definition of “Closing Sale Price” set forth in Section 1.01, (ii) whether a day is a Trading Day (and whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for such Capital Stock or similar equity interest shall be determined in a manner analogous to that used to determine whether a day is a Trading Day (or whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for the Common Stock, and (iii) whether a day is a Trading Day to be included in a Valuation Period will be determined based on whether a day is a Trading Day for both the Common Stock and such Capital Stock or similar equity interest. Subject to Section 4.04(g), for the purposes of this Section 4.04(c), rights, options or warrants distributed to all or substantially all holders of the Common Stock entitling them to acquire TERP’s Capital Stock or other securities, (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are deemed to be transferred with such shares of Common Stock; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.04(c) (and no adjustment to the Exchange Rate under this Section 4.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 4.04(c). If any such rights, options or warrants, distributed prior to the Issue Date are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date of such deemed distribution (in which case the original rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders). In addition, in the event of any distribution or deemed distribution of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 4.04(c) was made, (1) in the case of any such rights, options or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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 holders of Common Stock with respect to such rights, options or warrants (assuming each such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants which shall have expired or been terminated without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of Sections 4.04(a) through (c), if any dividend or distribution to which this Section 4.04(c) applies includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 4.04(a) also applies (the “Clause A Distribution”); or
(B) an issuance of rights, options or warrants entitling holders of the Common Stock to subscribe for or purchase shares of the Common Stock to which Section 4.04(b) also applies (the “Clause B Distribution”), then (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a distribution to which this Section 4.04(c) applies (the “Clause C Distribution”) and any Exchange Rate adjustment required to be made under this Section 4.04(c) with respect to such Clause C Distribution shall be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company, (A) the “Record Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Close of Business on such Record Date” within the meaning of Section 4.04(b), and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Company, (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution, if any, shall be deemed to be the Record Date of the Clause C Distribution, and (B) any sh
Appears in 1 contract
Sources: Indenture (Sunedison, Inc.)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of the Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. If the Guarantor makes a dividend or distribution to all holders of Common Stock that allows holders to elect between cash and/or shares of Common Stock, adjustments to the Exchange Rate will be made pursuant to this Section 13.05(a) only, and shall be made as if the entire dividend amount declared by the Guarantor will be distributed in shares of Common Stock (notwithstanding the actual component of such distribution consisting of shares of Common Stock), and no further adjustments or readjustments shall be made with respect to such dividend or distribution. Notwithstanding the immediately preceding paragraph, in the event the number of shares of Common Stock to be delivered in connection with such dividend or distribution is determined based on an averaging period, the adjustment pursuant to this paragraph shall become effective on the date that is immediately after the last day of such averaging period.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 for a period of not more than forty-five (45) days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (BioMed Realty Trust Inc)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 ER' = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for after such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuanceevent; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; and OS' = the Ex-Dividend Date number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the record date fixed for such determination. If any dividend or distribution of the type described in this Section 8.04(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 Exchange Rate shall be 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to such event; ER' = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event;
Appears in 1 contract
Sources: Supplemental Indenture (Prologis)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Company issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Company effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date Open of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding Business on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date, or effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding immediately prior to the Open of Business on the such Ex-Dividend Date for such dividend Date, or distribution or the effective date of such share split or share combination, as applicable, as if combination but after giving effect to such dividend, distribution, share split or combination occurred at that timeshare combination. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced.
(b) If the Company distributes to all, or substantially all, holders of Common Stock any rights, warrants or options entitling them for a period of not more than 45 days after the announcement date of such issuance to subscribe for or purchase Common Stock at an exercise price per share of Common Stock less than the average of the Closing Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (a) the aggregate price payable to exercise such rights, warrants or options and (b) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Trading Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. Any increase made under this Section 13.03(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dvidend Date for such issuance. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such 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, options or warrants are not so issued, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For purposes of this Section 13.03(b) and for the purpose of Section 13.01(b)(iii)(A), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the the Issuer or the Company for such 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 or a committee thereof.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company to all, or substantially all, holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in clause (a) or (b) of this Section 13.03;
(B) dividends or distributions paid exclusively in cash;
(C) Spin-Offs described below in this clause (c); and
(D) Any distributions of Reference Property pursuant to a transaction described below under Section 13.05, then the Exchange Rate will be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of Common Stock over 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 in good faith by the Board of Directors, or a committee thereof) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 11.03(c) above will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” with respect to any distribution of shares of Capital Stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of Capital Stock, evidences of indebtedness or other assets or property of the Company are distributed to holders of Common Stock, for each Note, the amount of shares of Capital Stock, evidences of indebtedness or other assets or property of the Company such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction (x) the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such distribution, and the aggregate principal amount of Notes held by such Holder and (y) the denominator of which is $1,000. With respect to an adjustment to the Exchange Rate made pursuant to this clause (c), where there has been a payment of a dividend or other distribution of Common Stock or shares of Capital Stock of any 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, listed or admitted for trading on a U.S. national or regional securities exchange (a “Spin-Off”), the Exchange Rate will be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the end of the Valuation Period (as defined below); ER1 = the Exchange Rate in effect immediately after the end of the Valuation Period; FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined by reference to the definition of Closing Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Common Stock over the Valuation Period. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will become effective immediately after the end of the Valuation Period; provided that in respect of any exchange within the Valuation Period, references within this clause (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the applicable Exchange Rate. If any dividend or distribution described in this clause (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 13.03(c) (and subject in all respect to Section 13.03(f)), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common 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 the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 13.03(c) (and no adjustment to the Exchange Rate under this Section 13.03(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 13.03(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 13.03(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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, 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 purchase, 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 Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued. For purposes of 13.03(a), Section 13.03(b) and this Section 14.03(c), if any dividend or distribution to which this Section 13.03(c) is applicable also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 13.03(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 13.03(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 13.03(c) is applicable (the “Clause C Distribution”) and any Exchange Rate adjustment required by this Section 13.03(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 13.03(a) and Section 13.03(b) with respect thereto shall then be made, except that, if determined by the Company, (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date, or effective date” within the meaning of Section 13.03(a) or “outstanding immediately prior to the Open of Business on the Ex-Dividend Date” within the meaning of Section 13.03(b).
(d) If the Company makes any cash dividend or distribution to all, or substantially all, holders of outstanding Common Stock, other than cash dividends in any fiscal quarter that do not exceed in aggregate $0.085 per share (such threshold, subject to adjustment as provided below, the “Dividend Threshold”) the Exchange Rate will be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution; ER1 = the new Exchange Rate immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Closing Sale Price of Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; T = the Dividend Threshold; and C = the aggregate amount in cash per share that the Company distributes to holders of Common Stock in a fiscal quarter; The Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate made pursuant to the provisions described in this Section 11.03; provided that no adjustment will be made to the Dividend Threshold for any adjustment to the Exchange Rate under this clause (d). If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If , effective as of the Parent Guarantor issues date the Board of Directors or committee thereof determines not to all make or pay such dividend or distribution. Notwithstanding the foregoing, if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock any rightsStock, warrantsfor each Note, options or other securities entitling them for the amount of cash such Holder would have received had such Holder owned a period number of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted equal to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to on the Ex-Dividend Date for such issuance; ER1 = dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding immediately prior shall be readjusted to the Ex-Dividend Date for such issuance;the
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/x OS1 OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend date, or effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the immediately prior to such Ex-Dividend Date for such dividend date, or distribution or the effective date of such share split or share combination, as applicable, as if combination but after giving effect to such dividend, distribution, share split or combination occurred at that timeshare combination. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all all, or substantially all, holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 60 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the average of the Closing Sale Price Prices of Common Stock for the 10 consecutive Trading Day period ending on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × x (OS0 + X)/(OS0 + X) (OS0 +Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (Kilroy Realty Corp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Company issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Company effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS1 / OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Company distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 X) / (OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; X = the aggregate number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise all such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Company for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Company distributes shares of capital stock, evidences of indebtedness or other assets or property of the Company to all holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be increased based on the following formula: ER1 = ER0 × SP0 / (SP0 - FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date or the ex-dividend date for such distribution. provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Company are distributed to holders of Common Stock, for each Note, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Company such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution. If the Company distributes to all holders of Common Stock capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), the Exchange Rate in effect immediately following the 10th Trading Day immediately following, and including the effective date of the Spin-Off will be increased based on the following formula: ER1 = ER0 × (FMV0 + MP0) / MP0 where ER0 = the Exchange Rate in effect on the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur at the close of business on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Company distributes cash to all or substantially all holders of outstanding Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up or any regular quarterly cash dividend on the Common Stock to the extent that the aggregate amount of such regular quarterly cash dividend per share of Common Stock does not exceed $0.70 for the relevant quarterly period ($0.70 being the “Reference Dividend Amount”)), the Exchange Rate will be increased based on the following formula: ER1 = ER0 × (SP0 - RDA) / (SP0 - C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution; RDA = the Reference Dividend Amount; and C = the amount in cash per share that the Company distributes to holders of Common Stock. provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective as of the open of business on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend Amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend Amount will be deemed to be zero.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1)) / (SP1 × OS0) where ER0 = the Exchange Rate in effect on the Trading Day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second Trading Day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Common Stock for the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective on the second day immediately following the Expiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) If the Company has in effect a rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes, in addition to Common Stock, if any, rights under the Company’s shareholder rights agreement unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by the Company have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any shares of Common Stock delivered upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if the Company had distributed, to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. Notwithstanding the foregoing, in the event of an adjustment to the Exchange Rate pursuant to paragraphs (d) and (e) above, in no event will the Exchange Rate exceed 7.2129 shares of Common Stock per $1,000 principal amount of notes, subject to adjustment pursuant to paragraphs (a), (b) and (c) above. In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law, increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Company. If the Issuer makes such determination, it will be conclusive and the Issuer will mail to Holders of the Notes and the Trustee a notice of the increased Exchange Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect in accordance with applicable law. The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Notes participate in the dividend, distribution or transaction that would otherwise result in an adjustment to the Exchange Rate at the same time as holders of the Common Stock and as if such Holders of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date or effective date for the relevant dividend, distribution or transaction, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). Notwithstanding anything to the contrary contained herein, in addition to the other events set forth herein on account of which no adjustment to the Exchange Rate shall be made, the Applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Common Stock pursuant to any present or future plan providing for the reinvestment of divide
Appears in 1 contract
Sources: Indenture (Sl Green Realty Corp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend Date, or effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the immediately prior to such Ex-Dividend Date for such dividend Date, or distribution or the effective date of such share split or share combination, as applicable, as if combination but after giving effect to such dividend, distribution, share split or combination occurred at that timeshare combination. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declareddeclared or such subdivision or combination had not been announced.
(b) If the Parent Guarantor issues distributes to all all, or substantially all, holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 60 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the average of the Closing Sale Price Prices of Common Stock for the 10 consecutive Trading Day period ending on the Business Trading Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = ER0= the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuancedistribution;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 ER′ = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for after such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuanceevent; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; and OS′ = the Ex-Dividend Date number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the record date fixed for such determination. If any dividend or distribution of the type described in this Section 8.04(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 Exchange Rate shall be 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to such event; ER′ = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor issues In case Boston Properties shall issue shares of Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 ER' = ER0 × OS1/x OS' OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 ER' = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS' = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Boston Properties shall issue to all or substantially all holders of its outstanding shares of Common Stock rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: ER' = ER0 x OS0 +X OS0 + Y where ER0 = the Exchange Rate in effect immediately prior to such event; ER' = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; X = the total number of shares of Common Stock issuable pursuant to such rights, warrants or convertible securities; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the record date (or, if earlier, the Ex-Dividend Date) for the issuance of such rights, warrants or convertible securities. Such adjustment shall be successively made whenever any such rights, warrants or convertible securities are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. If such rights, warrants or convertible securities are not so exercised prior to their expiration, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such record date for such distribution had not been fixed. In determining whether any rights, warrants or convertible securities entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by Boston Properties for such rights, warrants or convertible securities and any amount payable on exercise or exchange thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case Boston Properties shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of Boston Properties (other than Common Stock as covered by Section 8.04(a)), evidences of its indebtedness or other assets or property of Boston Properties (including securities, but excluding dividends and distributions covered by Section 8.04(b) or Section 8.04(d) and distributions described below in this paragraph (c) with respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this Section 8.04(c) called the “Distributed Property”), then, in each such case the Exchange Rate shall be adjusted based on the following formula: ER' = ER0 x ▇▇▇ ▇▇▇ – FMV where ER0 = the Exchange Rate in effect immediately prior to such distribution; ER' = the Exchange Rate in effect immediately after such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the Record Date for such distribution (or, if earlier, the Ex-Dividend Date); and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the record date for such distribution (or, if earlier, the Ex-Dividend Date). Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution; 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 is equal to or greater than SP0 as set forth above, in lieu of the 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 exchange, the amount of Distributed Property such holder would have received had such holder owned a number of shares of Common Stock equal to the Exchange Rate on the Record Date. If such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) . If the Parent Guarantor issues Board of Directors determines the fair market value of any distribution for purposes of this Section 8.04(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 determining SP0 above. With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula: ER' = ER0 x FMV0 + MP0 MP0 where ER0 = the Exchange Rate in effect immediately prior to such distribution; ER' = the Exchange Rate in effect immediately after such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off; provided that in respect of any exchange within the ten Trading Days following any Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such lesser number of Trading Days as have elapsed between such Spin-Off and the exchange date in determining the applicable Exchange Rate. Rights or warrants distributed by Boston Properties to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of Boston Properties’ Capital Stock, including Common 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 8.04 (and no adjustment to the Exchange Rate under this Section 8.04 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 Exchange Rate shall be made under this Section 8.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Sixth Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 8.04 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 Exchange 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 any rights, warrants, options or other securities entitling them for a period as of not more than 45 days after the date of issuance thereof 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 Exchange Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or distribution to which this Section 8.04(c) is applicable that also includes shares of Common Stock to which Section 8.04(a) applies or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 8.04(a) or securities convertible into Common Stock within 45 days after Section 8.04(b) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the issuance thereofevidences of indebtedness, in either case at an exercise price per share assets or shares of capital stock other than such shares of Common Stock or rights or warrants to which Section 8.04(c) applies (and any Exchange Rate adjustment required by this Section 8.04(c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a conversion price per share less than the Closing Sale Price dividend or distribution of such shares of Common Stock on or such rights or warrants (and any further Exchange Rate adjustment required by Section 8.04(a) and Section 8.04(b) with respect to such dividend or distribution shall then be made), except (A) the Business Day immediately preceding the time of announcement record date of such issuancedividend or distribution shall be substituted as “the record date” and “the date fixed for such determination” within the meaning of Section 8.04(a) and Section 8.04(b) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to such event” within the meaning of Section 8.04(a).
(d) In case Boston Properties shall pay a dividend or make a distribution consisting exclusively of cash to all or substantially all holders of its Common Stock to the extent that the aggregate of all such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount for such quarter, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 formula: ER' = ER0 × (OS0 + X)/(OS0 + Y) x SP0 – T SP0 – C where ER0 = the Exchange Rate in effect immediately prior to the Record Date for such distribution; ER' = the Exchange Rate in effect immediately after the Record Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the period of ten consecutive Trading Days ending the Business Day immediately preceding the record date (as defined in clause (f) of this Section) for such distribution (or, if earlier, the Ex-Dividend Date date relating to such distribution); T = the dividend threshold amount (“Dividend Threshold Amount”), which amount shall initially be $0.68 per quarter and which shall be appropriately adjusted from time to time for any stock dividends or payment of certain cash dividends, whether quarterly or special, on, or subdivisions or combinations of, Common Stock; provided, that if an Exchange Rate adjustment is required to be made as a result of a distribution that is not a quarterly dividend either in whole or in part, the Dividend Threshold Amount shall be deemed to be zero; and C = the amount in cash per share that Boston Properties distributes to holders of Common Stock. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the record date for such issuancedividend or distribution; ER1 provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than SP0 above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon exchange of a Note (or any portion thereof) the amount of cash such holder would have received had such holder owned a number of shares equal to the Exchange Rate on the record date. If such dividend or distribution is not so paid or made, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any reclassification of the Common Stock, as a result of which the Notes become exchangeable into more than one class of Common Stock, if an adjustment to the Exchange Rate is required pursuant to this Section 8.04(d), references in this Section to one share of Common Stock or Last Reported 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 exchangeable equal to the number 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.
(e) In case Boston Properties or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for all or any portion of the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Exchange Rate shall be increased based on the following formula: ER' = ER0 x AC + (SP' x OS') OS0 x SP' where ER0 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for date such issuancetender or exchange offer expires; OS0 ER' = the number Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of shares of Common Stock outstanding immediately prior to all cash and any other consideration (as determined by the Ex-Dividend Date for such issuance;Board
Appears in 1 contract
Sources: Supplemental Indenture (Boston Properties LTD Partnership)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × x OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × x (OS0 OS0+ X)/(OS0 X)/(OS0+ Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Adjustment of Exchange Rate. The Issuer shall adjust the Exchange Rate shall be adjusted from time to time by for the Issuer as followsfollowing events:
(a) If the Parent Guarantor Company issues shares of Company Common Stock as a dividend or distribution on the Common Stock to all holders shares of Company Common Stock, or if the Parent Guarantor Company effects a share split or share combinationcombination with respect to its Company Common Stock, the Exchange Rate will shall be adjusted based on the following formula: where, ER1 = ER0 × OS1/OS0 where the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination, as the case may be; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date Effective Date of such share split or share combination, as applicablethe case may be; ER1 OS0 = the Exchange Rate in effect number of shares of Company Common Stock outstanding immediately prior to the open of business on and immediately after the Ex-Dividend Date for such dividend or distribution or the Effective Date of such share split or share combination; and OS1 = the number of shares of Company Common Stock that would be outstanding immediately after, and solely as a result of, such dividend, distribution, share split or share combination, as the case may be. Any adjustment made under this clause (a) shall become effective date immediately after the open of business on such Ex-Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph clause (a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Company distributes to all or substantially all holders of its Company Common Stock any rights, warrants, options or other securities warrants entitling them to purchase, for a period of not more than 45 calendar days after or less from the declaration date for such distribution, shares of issuance thereof to subscribe for or purchase the Company Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the average Closing Sale Price of the Company Common Stock on for the Business Day ten consecutive Trading Days immediately preceding preceding, but excluding, the time of announcement of declaration date for such issuancedistribution, the Exchange Rate will shall be adjusted increased based on the following formula (provided that formula: where ER1 = the Exchange Rate will be readjusted to in effect immediately after the extent that open of business on the Ex-Date for such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where distribution; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of the Company Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such issuancedistribution; X = the total number of shares of the Company Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of the Company Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average Closing Sale Price of the Company Common Stock for the ten consecutive Trading Days immediately preceding, but excluding, the declaration date for such distribution. Any increase made under this clause (b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open of business on the Ex-Date for such distribution. To the extent that shares of the Company Common Stock are not delivered after the expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of the Company Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect if such Ex-Date for such distribution had not occurred. For purposes of this clause (b) and Section 10.01(b)(1) above, in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Company Common Stock at a price per share less than such average Closing Sale Price for the ten consecutive Trading Days immediately preceding, but excluding, the declaration date for such distribution, and in determining the aggregate offering price of such shares of the Company Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable upon exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors or a committee thereof.
(c) If the Company distributes shares of its Capital Stock, evidences of its Indebtedness or other of its securities, assets or property to all or substantially all holders of Company Common Stock, excluding:
(i) dividends or distributions described in clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash described in clause (d) below;
(iii) Spin-Offs described below in the third paragraph of this clause (c); and
(iv) distributions of Reference Property in a transaction described in Section 10.05, then the Exchange Rate shall be increased based on the following formula: where, ER1 = the Exchange Rate in effect immediately after the open of business on the Ex-Date for such distribution; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such distribution; SP0 = the average Closing Sale Price of the Company Common Stock over the ten consecutive Trading Days immediately preceding, but excluding, the Ex-Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, securities, assets or property distributed with respect to each outstanding share of the Company Common Stock immediately prior to the open of business on the Ex-Date for such distribution. Any increase made under the portion of this clause (c) above shall become effective immediately after the open of business on the Ex-Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), or if the difference between “SP0” and “FMV” is less than $1.00, in lieu of the foregoing increase, provision should be made for each Holder to receive upon exchange, in respect of each $1,000 principal amount thereof, the amount and kind of the Capital Stock, evidences of the Company’s Indebtedness, or other securities assets or property of the Company that such Holder would have received as if such Holder owned a number of shares of Company Common Stock equal to the Exchange Rate in effect on the Ex-Date for the distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Company Common Stock in shares 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 that will be, upon distribution, listed on a U.S. national or regional securities exchange (a “Spin-Off”), the Exchange Rate shall be increased based on the following formula: where, ER1 = Exchange Rate in effect immediately after the open of business on the Ex-Date for the Spin-Off; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for the Spin-Off; FMV = the average Closing Sale Price of the Capital Stock or similar equity interest distributed to holders of the Company Common Stock applicable to one share of the Company Common Stock for the ten consecutive Trading Days immediately following the Ex-Date for such Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Company Common Stock over the Valuation Period. Any adjustment to the Exchange Rate under the preceding paragraph of this clause (c) shall be made immediately after the close of business on the last day of the Valuation Period, but shall be given effect as of the open of business on the Ex-Date for the Spin-Off. Because the Issuer will make the adjustment to the Exchange Rate at the end of the Valuation Period with retroactive effect, the Issuer shall delay the settlement of any Notes where the Exchange Date (in the case of Physical Settlement) or the final day of the related Exchange Period (in the case of Cash Settlement or Combination Settlement) occurs during the Valuation Period. In such event, the Issuer shall pay or deliver, as the case may be, any cash, shares of the Company Common Stock or a combination thereof representing our exchange obligation due upon exchange (based on the adjusted Exchange Rate as described above) on the third Business Day immediately following the last Trading Day of the Valuation Period. The Person in whose name the certificate for any shares of Company Common Stock delivered upon exchange is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the Valuation Period. If any distribution of the type described in this Section 10.04(c) is declared but not so made, the Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to make such distribution, to the Exchange Rate that would then be in effect if such distribution had not been declared.
(d) If the Company pays any cash dividends or distributions exclusively in cash to all or substantially all holders of its Company Common Stock (other than dividends or distributions made in connection with the Company’s liquidation, dissolution or winding-up), the Exchange Rate shall be increased based on the following formula: where, ER1 = the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution; ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution; SP0 = the average Closing Sale Price of the Company Common Stock for the ten consecutive Trading Days immediately preceding, but excluding, the Ex-Date for such dividend or distribution; and C = the amount in cash per share the Company distributes to holders of the Company Common Stock. Any increase made under this clause (d) shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date the Board of Directors, or a committee thereof, determines not to make or pay such dividend or distribution, to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), or if the difference between “SP0” and “C” is less than $1.00, in lieu of the foregoing increase, provision should be made for each Holder to receive upon exchange, in respect of each $1,000 principal amount thereof, the amount of cash that such Holder would have received as if such Holder owned a number of shares of the Company Common Stock equal to the Exchange Rate in effect on the Ex-Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries, including the Issuer, makes a payment in respect of a tender offer or exchange offer for the Company Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of the Company Common Stock exceeds the Closing Sale Price of the Company Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exchange Rate shall be increased based on the following formula: where, ER1 = the Exchange Rate in effect immediately after the close of business on the Trading Day immediately following the Expiration Date; ER0 = the Exchange Rate in effect immediately prior to the close of business on the Trading Day immediately following the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors or a committee thereof) paid or payable for shares purchased in such tender or exchange offer; SP1 = the average Closing Sale Price of the Company Common Stock for the ten consecutive Trading Days next succeeding the Expiration Date (the “Averaging Period”); OS1 = the number of shares of the Company Common Stock outstanding immediately after the close of business on the Expiration Date (after giving effect to such tender offer or exchange offer); and OS0 = the number of shares of the Company Common Stock outstanding immediately prior to the close of business on the Expiration Date (prior to giving effect to such tender offer or exchange offer). Any adjustment to the Exchange Rate under this clause (e) shall be made immediately after the close of business on the last day of the Averaging Period, but shall be given effect as of the open of business on the Trading Day immediately following the Expiration Date. Because the Issuer will make the adjustment to the Exchange Rate at the end of the Valuation Period with retroactive effect, the Issuer shall delay the settlement of any Notes where the Exchange Date (in the case of Physical Settlement) or the final day of the related Exchange Period (in the case of Cash Settlement or Combination Settlement) occurs during the related Averaging Period. In such event, the Issuer will pay or deliver, as the case may be, the cash, shares of Company Common Stock or a combination of cash and of shares of Company Common Stock, if any, on the third Business Day immediately following the last day of the Averaging Period, and the Person in whose name the certificate for any shares of Company Common Stock delivered upon exchange is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the Averaging Period.
(f) To the extent that any stockholders rights plan adopted by the Company is in effect upon exchange of the Notes, Holders will receive, in addition to any Company Common Stock due upon exchange, the rights under the applicable rights agreement. However, if, prior to any exchange, the rights have separated from the shares of the Company Common Stock in accordance with the provisions of the applicable stockholders rights plan, the Exchange Rate will be adjusted at the time of separation as if the Company distributed to all holders of the Company Common Stock, shares of Capital Stock, evidences of Indebtedness, securities, assets or property as described in clause (c) above, subject to readjustment in the event of the expiration, termination or redemption of such rights.
(g) Notwithstanding the foregoing, if an Exchange Rate adjustment becomes effective on any Ex-Date as described in this Section 10.04, and a Holder that has exchanged its Notes on or after such Ex-Date and on or prior to the related Record Date would be treated as the record holder of the shares of the Company Common Stock as of the related Exchange Date as described under Section 10.02(b) based on an adjusted Exchange Rate for such Ex-Date, then, notwithstanding the foregoing Exchange Rate adjustment provisions, such Exchange Rate adjustment relating to such Ex-Date shall not be made for such exchanging Holder. Instead, such Holder shall be treated as if such Holder were the record owner of such shares of Company Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
(h) In addition, if a Holder exchanges a Note and
(i) Combination Settlement is applicable to such a Note;
(ii) the Record Date, Effec
Appears in 1 contract
Sources: Indenture (Spansion Inc.)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Issuers if any of the following events occurs, except that the Issuers shall not make any adjustments to the Exchange Rate if Holders of the Notes participate (other than in the case of a share split or share combination), at the same time and upon the same terms as follows:holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 13.06, without having to exchange their Notes, as if they held a number of shares of Common Stock equal to the Exchange Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Parent Guarantor issues shares of Common Stock are issued exclusively as a dividend or distribution on the Common Stock to all holders shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where where, ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend Date, or distribution or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; ER1 ER’ = the Exchange Rate in effect on and immediately after the open of business on such Ex-Dividend Date for or immediately after the open of business on such dividend or distribution or the effective date of such share split or share combinationdate, as applicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or immediately prior to the open of business on such effective date, as applicable; and OS’ = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 13.06(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date of for such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph (aSection 13.06(a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Directors of Parent determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all or substantially all holders of Common Stock are entitled to receive any rights, warrants, options or other securities warrants entitling them them, for a period of not more than 45 calendar days after the announcement date of issuance thereof such issuance, to subscribe for or purchase shares of the Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise a price per share of Common Stock or a conversion price per share that is less than the Closing average of the Last Reported Sale Price Prices of the Common Stock on for the Business 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rightsformula: where, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; ER1 ER’ = the Exchange Rate in effect on and immediately after the open of business on such Ex-Dividend Date for such issuanceDate; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 13.06(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Ex-Dividend Date for such issuance;. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such 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, options or warrants are not so issued, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the adjustment pursuant to this Section 13.06(b) not occurred. For purposes of this Section 13.06(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for such issuance, 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, options or warrants and any amount payable on exercise or exchange thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company.
(c) If any dividend or distribution of shares of Parent’s Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 13.06(a) or Section 13.06(b), (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 13.06(d), and (iii) Spin-Offs as to which the provisions set forth below in this Section 13.06(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities of Parent, the “Distributed Property”), then the Exchange Rate shall be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; ER’ = the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors of Parent) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. Any increase made under this Section 13.06(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0”(as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. If the Board of Directors of Parent determines the “FMV” (as defined above) of any distribution for purposes of this Section 13.06(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section 13.06(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Parent’s Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of Parent, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”) the Exchange Rate shall be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the end of the Valuation Period; ER’ = the Exchange Rate in effect immediately after the end of the Valuation Period; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Exchange Rate under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that in respect of any exchange during the Valuation Period, references in the portion of this Section 13.06(c) related to Spin-Offs to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate. For purposes of this Section 13.06(c) (and subject in all respects to Section 13.12), rights, options or warrants distributed by Parent to all holders of the Common Stock entitling them to subscribe for or purchase shares of Parent’s Capital Stock, including the Common 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 the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 13.06(c) (and no adjustment to the Exchange Rate under this Section 13.06(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 13.06(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 13.06(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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, 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 purchase, 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 Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued. For purposes of Section 13.06(a), Section 13.06(b) and this Section 13.06(c), any dividend or distribution to which this Section 13.06(c) is applicable that also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 13.06(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 13.06(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 13.06(c) is applicable (the “Clause C Distribution”) and any Exchange Rate adjustment required by this Section 13.06(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 13.06(a) and Section 13.06(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or immediately after the close of business on such effective date, as applicable” within the meaning of Section 13.06(a) or “outstanding immediately prior to the open of business on such Ex- Dividend Date or immediately after the close of business on such effective date, as applicable” within the meaning of Section 13.06(b).
(d) If any cash dividend or distribution (other than in connection with a liquidation, dissolution or winding up) is made to all or substantially all holders of the Common Stock, the Exchange Rate shall be adjusted based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; ER’ = the Exchange Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share distributed to holders of its Common Stock. Any increase pursuant to this Section 13.06(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date the Board of Directors of Parent determines not to make or pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SPo”(as defined above), in lieu of the foregoing increase, each Holder of a Note shall rece
Appears in 1 contract
Sources: Indenture (Clearwire Corp /DE)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER' = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS' = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER' = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 1 contract
Sources: Supplemental Indenture (Prologis)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of the Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × X OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × X (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend dividend date for such distribution; X = the number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Guarantor for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Guarantor distributes shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor to all holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 X SP0/(SP0 - FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date or the ex-dividend date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Debentures shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor are distributed to holders of Common Stock, for each Debenture, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor such holder of Debentures would have received had such holder of Debentures owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such distribution, and the aggregate principal amount of Debentures held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution. If the Guarantor distributes to all holders of Common Stock capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate in effect immediately before the 10th Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 X (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Guarantor makes any cash dividend or distribution to all holders of outstanding Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Issuer) during any of its quarterly fiscal periods in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds the product of $0.33 (the “Reference Dividend”) multiplied by the number of shares of Common Stock outstanding on the Record Date for such issuance;distribution, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 X ▇▇▇ /(▇▇▇ - C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Common Stock that exceeds the Reference Dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Debentures shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Debenture, the amount of cash such holder of Debentures would have received had such holder of Debentures owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Debentures held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend will be deemed to be zero.
(e) If the Guarantor or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 X (AC + (SP1 X OS1))/(SP1 X OS0) where ER0 = the Exchange Rate in effect on the day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Common Stock for the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective on the second day immediately following the Expiration Time. If the Guarantor or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) Notwithstanding the foregoing, in the event of an adjustment to the exchange rate pursuant to paragraphs (d) and (e) above, in no event will the Exchange Rate exceed 27.9096 (the “Maximum Exchange Rate”). The Maximum Exchange Rate shall be adjusted in the same manner and for the same events as the Exchange Rate is adjusted pursuant to clauses (a), (b) and (c) above.
(g) If the Guarantor has in effect a stockholder’s rights plan while any Debentures remain outstanding, Holders of Debentures will receive, upon an exchange of Debentures, in addition to Common Stock, rights under the Guarantor’s stockholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the stockholder’s rights plan adopted by the Guarantor have separated from the Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Debentures would not be entitled to receive any rights in respect of any Common Stock that the Issuer delivers upon an exchange of Debentures, the Exchange Rate will be adjusted at the time of separation as if the Guarantor had distributed, to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights.
(h) In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law, increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Guarantor. If the Issuer makes such determination, it will be conclusive and the Issuer will mail to Holders of the Debentures a notice of the increased Exchange Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect in accordance with applicable law.
(i) The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Debentures participate in the dividend, distribution or transaction that would otherwise result in an adjustment to the Exchange Rate at the same time as holders of the Common Stock and as if such Holders of Debentures owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date or effective date for the relevant dividend, distribution or transaction, and the aggregate principal amount of Debentures held by such Holder and the denominator of which is one thousand ($1,000).
(j) Notw
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend dividend date for such distribution; X = the number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Guarantor for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Guarantor distributes shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor to all holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × SP0/(SP0 FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date or the ex-dividend date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor are distributed to holders of Common Stock, for each Note, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution. If the Guarantor distributes to all holders of Common Stock, capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate in effect immediately before the tenth Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the tenth Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the ten (10) Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Guarantor makes any cash dividend or distribution to all holders of outstanding Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Issuer) during any of its quarterly fiscal periods in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds the product of $0.2275 per share of Common Stock (the “Reference Dividend”) and the number of shares of Common Stock outstanding on the Record Date for such issuance;distribution, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ▇▇▇ /(▇▇▇ – C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Common Stock that exceeds the Reference Dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment on account of any of the events set forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Exchange Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the Exchange Rate as adjusted; provided that no adjustment will be made to the Reference Dividend amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend will be deemed to be zero.
(e) If the Guarantor or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1))/(SP1 × OS0) where ER0 = the Exchange Rate in effect on the day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Common Stock for the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective on the second day immediately following the Expiration Time. If the Guarantor or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) Notwithstanding the foregoing, in the event of an adjustment to the exchange rate pursuant to paragraphs (d) and (e) above, in no event will the Exchange Rate exceed 51.0986 shares of Common Stock per each $1,000 principal amount of the Notes (the “Maximum Exchange Rate”). The Maximum Exchange Rate shall be adjusted in the same manner and for the same events as the Exchange Rate is adjusted pursuant to clauses (a), (b) and (c) above.
(g) If the Guarantor has in effect a stockholder’s rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes in respect of which the Issuer elects to deliver any Net Shares, in addition to such Net Shares, rights under the Guarantor’s stockholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the stockholder’s rights plan adopted by the Guarantor have separated from the Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any Net Shares that the Issuer elects to deliver upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if the Guarantor had distributed, to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law and the applicable rules of the New York Stock Exchange, increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Guarantor. If the Issuer makes such determination, it will be conclusive and the Issuer will deliver to the Exchange Agent and Holders of the Notes a notice of the increased Exchange Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect in accordance with applicable law. The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Notes participate in the dividend, distribution or transaction
Appears in 1 contract
Sources: Indenture (Extra Space Storage Inc.)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Company issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Company effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor Company issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuance; X = the number of shares of Common Stock issuable pursuant to such rights, warrants, options, other securities or convertible securities; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Common Stock for the ten consecutive Trading Days prior to the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. For purposes of this paragraph (b), in determining whether any rights, warrants, options, other securities or convertible securities entitle the Holders to subscribe for or purchase or exercise a conversion right for Common Stock at less than the average Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Company for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) If the Company distributes shares of capital stock, evidences of indebtedness or other assets or property of the Company to all holders of Common Stock, excluding:
(1) dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in paragraph (a) or (b) above;
(2) dividends or distributions paid exclusively in cash; and
(3) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × SP0/(SP0 – FMV) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect on and after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock for the ten consecutive Trading Days prior to the Business Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution; With respect to an adjustment pursuant to this paragraph (c), where there has been a payment of a dividend or other distribution on Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Company (a “Spin-Off”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the effective date of the Spin-Off; ER1 = the Exchange Rate in effect on and after the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first ten consecutive Trading Days after the effective date of the Spin-Off. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If following the date of original issuance of the Securities, the Company makes any cash dividend or distribution to all holders of Common Stock in aggregate amount that, together with other cash dividends or distributions during such quarterly fiscal period, on a per share basis, exceeds $0.45 (the “Reference Dividend”) the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ▇▇▇ /(▇▇▇ – C) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the Exchange Rate in effect on and after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the period of the ten consecutive Trading Days ending on the Business Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share that the Company distributes to holders of Common Stock during such quarterly fiscal period in excess of the Reference Dividend. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend for any adjustment to the Exchange Rate under this paragraph (d).
(e) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1))/(SP1 × OS0) where ER0 = the Exchange Rate in effect on the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the day next succeeding the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender offer or exchange offer); and SP1 = the average of the Closing Sale Price of the Common Stock for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. If the Company or one of its subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer, but it or such subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) Notwithstanding the foregoing, in no event shall the adjustments arising under this Section 4.04 cause the Exchange Rate to exceed 14.6526, subject to the adjustments in clauses (a), (b) and (c) of this Section 4.04.
(g) If the Company adopts a shareholder rights plan while any Securities remain outstanding, Holders of Securities will receive, upon an exchange of Securities for shares of Common Stock, in addition to Common Stock, rights under such shareholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by the Company have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Securities would not be entitled to receive any rights in respect of Common Stock issuable upon exchange of the Securities, the Exchange Rate will be adjusted at the time of separation as if the Company had distributed, to all holders of Common Stock, shares of capital stock, evidences of indebtedness or other assets or property pursuant to Section 4.04(c) hereof, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In lieu of any such adjustment, the Company may amend such applicable shareholder rights agreement to provide that upon exchange of Securities, the Holders will receive, in addition to Common Stock issuable upon such exchange, the rights which would have attached to such Common Stock if the rights had not become separated from the Common Stock under such shareholders rights plan.
(h) In addition to the adjustments pursuant to paragraphs (a) through (f) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of the capital stock of the Company resulting from any dividend or distribution of capital stock (or rights to acquire shares of Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Company. If the Issuer makes such determination, it will be conclusive and the Issuer shall mail to Holders a notice of the increased Exchange Rate at least 15 days prior to the date the increased Exchange Rate takes effect in accordance with applicable law and such notice shall state the increased exchange rate and the period during which it will be in effect. The Issuer shall not make any adjustment to the Exchange Rate if Holders are permitted to participate in the dividend, distribution or transaction, on an as-exchanged basis, in the transactions in this Section 4.04.
(i) Notwithstanding anything to the contrary contained herein, the applicable Exchange Price and Exchange Rate will not be adjusted upon certain events, including but not limited to:
(1) 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 Issuer or those of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(2) the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director, trustee or consultant benefit plan, employee agreement or arrangement or program of the Issuer or the Company;
(3) the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Securities were first issued;
(4) a change in the par value of the Common Stock;
(5) accumulated and unpaid dividends or distributions; and
(6) as a result of a tender offer solely to holders of less than 100 shares of Common Stock; and
(7) for the avoidance of doubt, the issuance of limited partnership units by the Issuer and the issuance of the Common Stock or the payment of cash upon redemption thereof.
(j) No adjustment in the applicable Exchange Price will be required unless the adjustment would require an increase or decrease of at least 1% of the applicable Exchange Price. If the adjustment is not made because the adjustment does not change the Exchange Price by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, upon exchange of the Securities, upon required repurchases of the Securities in connection with a Change in Control pursuant to Section 3.01, upon redemption of the Securities pursuant to Section 11.01 and five Business Days prior to the Final Maturity Date, all adjustments not previously made shall be made. Except as specifically described above, the applicable Exchange Price shall not be subject to adjustment in the case of the issuance of any shares of Common Stock or the Company’s preferred shares, or securities exchangeable for or convertible into common stock or the Company’s preferred shares.
(k) Whenever the Exchange Rate is adjusted as herein provided, the Company or the Issuer shall as promptly as reasonably practicable file with the Trustee and any Exchange Agent other than the Trustee an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company or the Issuer shall prepare a notice of such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Exchange Rate to the Holders within 20 Business Days of the Effective Date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(l) For purposes of this Section 4.04, the number 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 cert
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor NRF issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor NRF effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor NRF issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuance; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuance;
Appears in 1 contract
Sources: Indenture (Northstar Realty)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor Issuer issues shares of Common Stock as a dividend or distribution on shares of the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 ER(0) ER'= ----- X OS' OS(0) where, ER(0) = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 event ER' = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 event OS(0) = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 event OS' = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 15.05(a) is declared but not so paid or made, the Exchange Rate shall again be readjusted adjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor Issuer issues to all or substantially all holders of its Common Stock any rights, warrants, options rights or other securities warrants entitling them such holders for a period of not more than 45 calendar days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or Stock, at a conversion price per share less than the Closing Last Reported Sale Price of Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula formula: OS(0) + X ER'=ER(0) x --------- OS(0) + Y where, ER(0) = the Exchange Rate in effect immediately prior to such event ER' = the Exchange Rate in effect immediately after such event OS(0) = the number of shares of Common Stock outstanding immediately prior to such event X = the total number of shares of Common Stock issuable pursuant to such rights or warrants Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights divided by the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the Stock Record Date for the issuance of such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. To the extent that shares of Common Stock are not delivered prior to the expiration of such rights or warrants, the Exchange Rate shall be readjusted to the Exchange 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 Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale 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 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 Company's Board of Directors.
(provided that c) If the Issuer distributes shares of its capital stock, evidences of its indebtedness or other assets or property of the Issuer to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in clause (a) or (b) above; and
(ii) dividends or distributions paid exclusively in cash; then the Exchange Rate will be readjusted adjusted based on the following formula: SP(0) ER'=ER(0) x ----------- SP(0) - FMV where, ER(0) = the Exchange Rate in effect immediately prior to such distribution ER' = the extent that Exchange Rate in effect immediately after such rightsdistribution SP(0) = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such distribution FMV = the fair market value (as determined by the Company's Board of Directors) of the shares of capital stock, warrantsevidences of indebtedness, optionsassets or property distributed with respect to each outstanding share of Common Stock on the Stock Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other securities or convertible securities are not exercised or converted business unit (a "SPIN-OFF") the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Stock Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula: FMV(0) + MP(0) ER'=ER(0) x -------------- MP(0) where, ER(0) = the Exchange Rate in effect immediately prior to such distribution ER' = the expiration Exchange Rate in effect immediately after such distribution FMV(0) = the average of the exercisability Last Reported Sale Prices of the capital stock or convertibility thereof): ER1 similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off MP(0) = ER0 × the average of the Last Reported Sale Prices of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off.
(OS0 + X)/(OS0 + Yd) where ER0 If the Issuer makes any cash dividend or distribution during any of the Issuer's quarterly fiscal period to all or substantially all holders of Common Stock, the Exchange Rate will be adjusted based on the following formula: SP(0) ER'=ER(0) x --------- SP(0) - C where, ER(0) = the Exchange Rate in effect immediately prior to the Ex-Dividend Stock Record Date for such issuance; ER1 dividend or distribution ER' = the Exchange Rate in effect immediately after the Stock Record Date for such dividend or distribution SP(0) = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such dividend or distribution C = the amount in cash per share the Issuer dividends or distributes to holders of Common Stock. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the date for such determination.
(e) If the Issuer or any of its subsidiaries purchases shares of Common Stock pursuant to a tender or exchange offer which involves an aggregate per share consideration that exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (such last date, the "EXPIRATION TIME"), the Exchange Rate will be adjusted based on the following formula: AC + (SP'xOS') ER'=ER(0) x -------------- OS(0) x SP' where, ER(0) = the Exchange Rate in effect on the date such tender or exchange offer expires ER' = the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the aggregate value of all cash and immediately after any other consideration (as determined by the Ex-Dividend Date Company's Board of Directors) paid or payable for shares purchased in such issuance; OS0 tender or exchange offer OS(0) = the number of shares of Common Stock outstanding immediately prior to the Exdate such tender or exchange offer expires OS' = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires SP' = the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the Issuer is obligated to purchase shares pursuant to any such tender or exchange offer, but the Issuer is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made. If, however, the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made.
(f) Notwithstanding the foregoing provisions of this 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 exchange, for any distribution described therein if the holder will otherwise participate in the distribution without exchange of such holder's Notes.
(g) The Company may (but is not required to) make such increases in the Exchange Rate, in addition to those required by clauses (a) through (e) of this Section 14.05 as the Company's 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 in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Exchange Rate by any amount for any period of at least 20 days if the Company's 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.
(h) All calculations under this Article 14 shall be made by the Company and shall be made to the nearest cent or to the nearest one-Dividend ten thousandth (1/10,000) of a share, as the case may be. The Company will not be required to make an adjustment in the Exchange Rate unless the adjustment would require a change of at least 1% in the Exchange Rate. However, the Company will carry forward any adjustments that are less than 1% of the Exchange Rate and make such carried forward adjustments, regardless of whether aggregate adjustment is less than 1% within one year of the first such adjustment carried forward, upon redemption, upon a Fundamental Change or upon the Stated Maturity. To the extent the Notes become exchangeable into cash, assets or property (other than capital stock of the Issuer or securities to which Section 14.06 or 14.07 applies), no adjustment shall be made thereafter pursuant to this Section 14.05 as to the cash, assets or property.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Exchange Agent other than the Trustee an Officers' Certificate setting forth the Exchange 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 Exchange Rate and may assume that the last Exchange 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 Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective. The Company or, at the Company's request after the Company has prepared and delivered such notice to the Trustee, the Trustee in the name and at the expense of the Company, shall notify the holders of the adjustment to the Exchange Rate in the manner provided in Section 16.03, and the Company shall also publicly announce such information by publication on the Company's Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(j) In any case in which this Section 14.05 provides that an adjustment shall become effective immediately after (1) a record date or Stock Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to Section 14.05(a), (3) a date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to Section 14.05(b) or (4) the Expiration Time for any tender or exchange offer pursuant to Section 14.05(e), (each a "DETERMINATION DATE"), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note exchanged after such issuance;Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such exchange by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such exchange before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 14.03. For purposes of this Section 14.05(j), the term "ADJUSTMENT EVENT" shall mean:
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If In case the Parent Guarantor issues shares of Common Stock as Company shall pay or make a dividend or other distribution on any class of capital stock of the Common Stock to all holders of Company in Class A Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior at the opening of business on the day following the date fixed for the determination of stockholders entitled to the Ex-Dividend Date for receive such dividend or other distribution shall be increased by multiplying such Exchange Rate by a fraction the numerator of which shall be the sum of the number of shares of Class A Common Stock outstanding at the close of business on the date fixed for such determination and the total number of shares constituting such dividend or other distribution and the denominator of which shall be such number of shares of Class A Common Stock outstanding at the close of business on the date fixed for such determination, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of such share split this subsection (a), the number of shares of Class A Common Stock at any time outstanding shall not include shares held in the treasury of the Company.
(b) In case Iridium shall pay or share combinationmake a dividend or other distribution on any class of Iridium Interests in Class 1 Interests, as applicable; ER1 = the Exchange Rate in effect at the opening of business on the day following the date fixed for the termination of Iridium members entitled to receive such dividend or other distribution shall be decreased by multiplying such Exchange Rate by a fraction the denominator of which shall be the sum of the number of Class 1 Interests outstanding at the close of business on the date fixed for such determination and the total number of Class 1 Interests constituting such dividend or other distribution and the numerator of which shall be such number o Class 1 Interests outstanding at the close of business on the date fixed for such determination, such decrease to become effective immediately after the Ex-Dividend Date opening of business on the day following the date fixed for such dividend or distribution or determination. For the effective date purposes of such share split or share combinationthis subsection (b), as applicable; OS0 = the number of Class 1 Interests at any time outstanding shall not include shares held in the treasury of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declaredIridium.
(bc) If In case the Parent Guarantor issues Company shall issue rights or warrants to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share class of Common Stock entitling them to subscribe for, purchase or acquire shares of Class A Common Stock at a conversion price per share less than the Closing Sale Price current market price per share (determined as provided in subsection (k) below) of the Class A Common Stock on the Business Day immediately preceding date fixed for the time determination of announcement of stockholders entitled to receive such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, rights or warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to at the Ex-Dividend Date opening of business on the day following the date fixed for such issuance; ER1 = determination shall be increased by multiplying such Exchange Rate by a fraction the numerator of which shall be the number of shares of Class A Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Class A Common Stock so offered for subscription, purchase or acquisition, and the denominator of which shall be the number of shares of Class A Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Class A Common Stock which the aggregate of the offering price of the total number of shares of Class A Common Stock so offered for subscription, purchase or acquisition would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this subsection (c), the number of shares of Class A Common Stock at any time outstanding shall not include shares held in the treasury of the Company. The Company agrees not to pay any dividend or make any distribution on shares of Common Stock held in its treasury.
(d) In case Iridium shall issue rights or warrants to all holders of Class 1 Interests entitling them to subscribe for, purchase or acquire Class 1 Interests at a price per Class 1 Interest less than the current market price per share (determined as provided in subsection (k) below) of the Class A Common Stock multiplied by the Exchange Rate on the date fixed for the determination of Class 1 Interest holders entitled to receive such rights or warrants, the Exchange Rate in effect at the opening of business on the day following the date fixed for such determination shall be decreased by multiplying such Exchange Rate by a fraction the denominator of which shall be the number of Class 1 Interests outstanding at the close of business on the date fixed for such determination plus the number of Class 1 Interests so offered for subscription, purchase or acquisition, and the numerator of which shall be the number of Class 1 Interests outstanding at the close of business on the date fixed for such determination plus the number of Class 1 Interests which the aggregate of the offering price of the total number of Class 1 Interests so offered for subscription, purchase of acquisition would purchase at a price per Class 1 Interest equal to the market price per Share of Class A Common Stock multiplied by the Exchange Rate, such increase to become effective immediately after the Ex-Dividend Date opening of business on the day following the date fixed for such issuance; OS0 = determination. For the purposes of this subsection (d), the number of Class 1 Interests at any time outstanding shall not include shares held in the treasury of Iridium. Iridium agrees not to pay any dividend or make any distribution on Class 1 Interests held in its treasury.
(e) In case the outstanding shares of Class A Common Stock shall be subdivided into a greater number of shares of Class A Common Stock, the Exchange 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 the outstanding shares of Class A Common Stock shall each be combined into a smaller number of shares of Class A Common Stock, the Exchange 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.
(f) In case the outstanding immediately prior Class 1 Interests shall be subdivided into a greater number of Class 1 Interests, the Exchange Rate in effect at the opening of business on the day following the day upon which such
(g) In case the Company shall, by dividend or otherwise, distribute to all holders of its Class A Common Stock evidences of its indebtedness or assets (including securities but excluding (A) any rights or warrants referred to in subsection (c) above, (B) any dividend or distribution referred to in subsection (a) above, and (C) any dividend or distribution paid in cash out of current or accumulated earnings), then in each case, the Exchange Rate in effect at the opening of business on the day following the date fixed for the determination of holders of Class A Common Stock entitled to receive such distribution shall be adjusted by multiplying such Exchange Rate by a fraction of which the numerator shall be the current market price per share (determined as provided in subsection (k) below) of the Class A Common Stock on such date of determination (or, if earlier, on the date on which the Class A Common Stock goes "ex-dividend" in respect of such distribution) less the then Fair Market Value as determined by the Company Board (whose determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed (and for which an adjustment to the Ex-Dividend Date Exchange Rate has not previously been made pursuant to the terms of this Article V) applicable to one share of Class A Common Stock, and the denominator shall be such current market price per share of the Class A Common Stock, such adjustment to become effective immediately after the opening of business on the day following such date of determination.
(h) In case Iridium shall, by dividend or otherwise, distribute to all holders of its Class 1 Interests evidence of its indebtedness or assets (including securities but excluding (A) any rights or warrants referred to in subsection (d) above, (B) any dividend of distribution referred to in subsection (b) above, and (C) any dividend or distribution paid in cash out of current or accumulated earnings), then in each case, the Exchange Rate in effect at the opening of business on the day following the date fixed for the determination of holders of Class 1 Interests entitled to receive such issuance;distribution shall be adjusted by multiplying such Exchange Rate by a fraction of which the
Appears in 1 contract
Sources: Interest Exchange Agreement (Iridium World Communications LTD)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares Shares of Common Stock Beneficial Interest as a dividend or distribution on the Common Stock Shares of Beneficial Interest to all holders of Common StockShares of Beneficial Interest, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 ER1 = the number of shares of Common Stock outstanding on new Exchange Rate in effect immediately after the Exex-Dividend Date dividend date for such dividend or distribution distribution, or the effective date of such share split or share combination; OS0 = the number of Shares of Beneficial Interest outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of Shares of Beneficial Interest outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock Shares of Beneficial Interest any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within Shares of Beneficial Interest for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share Share of Common Stock or a conversion price per share Beneficial Interest less than the Closing Sale Price of Common Stock the Shares of Beneficial Interest on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such distribution; OS0 = the number of Shares of Beneficial Interest outstanding immediately prior to the ex-dividend date for such distribution; X = the number of Shares of Beneficial Interest issuable pursuant to such rights, warrants or options; and Y = the number of Shares of Beneficial Interest equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Shares of Beneficial Interest for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Shares of Beneficial Interest at less than the applicable Closing Sale Price of the Shares of Beneficial Interest, and in determining the aggregate exercise or conversion price payable for such Shares of Beneficial Interest, there shall be taken into account any consideration received by the Guarantor for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Trustees. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Guarantor distributes shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor to all holders of Shares of Beneficial Interest, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × SP0/(SP0 – FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Shares of Beneficial Interest for the 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Trustees) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding Share of Beneficial Interest on the earlier of the record date or the ex-dividend date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor are distributed to holders of Shares of Beneficial Interest, for each Note, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Guarantor such holder of Notes would have received had such holder of Notes owned a number of Shares of Beneficial Interest equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution. If the Guarantor distributes to all holders of Shares of Beneficial Interest, capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Guarantor (a “Spin-Off”), the Exchange Rate in effect immediately before the tenth Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Shares of Beneficial Interest applicable to one Share of Beneficial Interest over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Shares of Beneficial Interest over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the tenth Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the ten (10) Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Guarantor makes any cash dividend or distribution to all holders of outstanding Shares of Beneficial Interest (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Issuer) during any of its quarterly fiscal periods in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds the product of $0.57 per Share of Beneficial Interest (the “Reference Dividend”) and the number of Shares of Beneficial Interest outstanding on the Record Date for such issuancedistribution, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ▇▇▇ /(▇▇▇ – C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately after the ex-dividend date for such distribution; SP0 = the average of the Closing Sale Prices of the Shares of Beneficial Interest for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution; and C = the amount in cash per share that the Guarantor distributes to holders of Shares of Beneficial Interest that exceeds the Reference Dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such cash is distributed to holders of Shares of Beneficial Interest, for each Note, the amount of cash such holder of Notes would have received had such holder of Notes owned a number of Shares of Beneficial Interest equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment on account of any of the events set forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Exchange Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the Exchange Rate as adjusted; provided that no adjustment will be made to the Reference Dividend amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend will be deemed to be zero.
(e) If the Guarantor or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Shares of Beneficial Interest to the extent that the cash and value of any other consideration included in the payment per Share of Beneficial Interest exceeds the Closing Sale Price of a Share of Beneficial Interest on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1))/(SP1 × OS0) where ER0 = the Exchange Rate in effect on the day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and immediately after any other consideration (as determined by the Ex-Dividend Date Board of Trustees) paid or payable for the Shares of Beneficial Interest purchased in such issuancetender or exchange offer; OS0 = the number of shares Shares of Common Stock Beneficial Interest outstanding immediately prior to the Ex-Dividend Date date such tender offer or exchange offer expires; OS1 = the number of Shares of Beneficial Interest outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of Shares of Beneficial Interest pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Shares of Beneficial Interest for the Trading Day next succeeding the date such issuance;tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective on the second day immediately following the Expiration Time. If the Guarantor or one of its Subsidiaries is obligated to purchase Shares of Beneficial Interest pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) Notwithstanding the foregoing, in the event of an adjustment to the exchange rate pursuant to paragraphs (d) and (e) above, in no event will the Exchange Rate exceed 21.9635 Shares of Beneficial Interest per each $1,000 principal amount of the Notes (the “Maximum Exchange Rate”). The Maximum Exchange Rate shall be adjusted in the same manner and for the same events as the Exchange Rate is adjusted pursuant to clauses (a), (b) and (c) above.
(g) If the Guarantor has in effect a stockholder’s rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes in respect of which the Issuer elects to deliver any Shares of Beneficial Interest, in addition to such Shares of Beneficial Interest, rights under the Guarantor’s stockholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Shares of Beneficial Interest. If the rights provided for in the stockholder’s rights plan adopted by the Guarantor have separated from the Shares of Beneficial Interest in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any Shares of Beneficial Interest that the Issuer elects to deliver upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if the Guarantor had distributed, to all holders of Shares of Beneficial Interest, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Shares of Beneficial Interest resulting from any dividend or distribution of capital stock (or rights to acquire Shares of Beneficial Interest) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law and the applicable rules of the New York
Appears in 1 contract
Sources: Indenture (Pennsylvania Real Estate Investment Trust)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor Host REIT issues shares of Host REIT Common Stock as a dividend or distribution on the Host REIT Common Stock to all or substantially all holders of Host REIT Common Stock, or if the Parent Guarantor Host REIT effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × x OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution distribution, or the effective date of such share split or share combination, as applicable; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 OS0 = the number of shares of Host REIT Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Host REIT Common Stock outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the Ex-Dividend Date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Host REIT distributes to all or substantially all holders of Host REIT Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Host REIT Common Stock or securities convertible into Common Stock within 45 for a period of not more than forty-five (45) days after the date of issuance thereof, in either case at an exercise price per share of Host REIT Common Stock or a conversion price per share less than the Closing Sale Price of Host REIT Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × x (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Host REIT Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuancedistribution; X = the total number of shares of Host REIT Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Host REIT Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of Host REIT Common Stock for the ten (10) consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Host REIT Common Stock at less than the applicable Closing Sale Price of Host REIT Common Stock, and in determining the aggregate exercise or exchange price payable for such Host REIT Common Stock, there shall be taken into account any consideration received by Host REIT for such rights, warrants or options and any amount payable on exercise or exchange thereof, with the value of such consideration, if other than cash, to be determined by Host REIT’s Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or exchanged prior to the expiration of the exerciseability or exchangeability thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If Host REIT distributes capital stock, evidences of indebtedness or other assets or property of Host REIT to all or substantially all holders of Host REIT Common Stock, excluding:
(i) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER 1 = ER0 x SP0/(SP0 - FMV) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Host REIT Common Stock for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Host REIT Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Host REIT Common Stock on the earlier of the record date or the Ex-Dividend Date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of Host REIT is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Exchangeable Debentures shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of Host REIT are distributed to holders of Host REIT Common Stock, for each Exchangeable Debenture, the amount of shares of capital stock, evidences of indebtedness or other assets or property of Host REIT such holder of Exchangeable Debentures would have received had such holder of Exchangeable Debentures owned a number of shares of Host REIT Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such distribution, and the aggregate principal amount of Exchangeable Debentures held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall be made successively whenever any such distribution is made and shall become effective on the Ex-Dividend Date for such distribution. If Host REIT distributes to all or substantially all holders of Host REIT Common Stock capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of Host REIT (a “Spin-Off”), the Exchange Rate in effect immediately before the tenth Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 x (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect immediately prior to the tenth Trading Day from, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the tenth Trading Day from, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Host REIT Common Stock applicable to one share of Host REIT Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of Host REIT Common Stock over the first ten (10) consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the tenth Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the ten (10) Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If Host REIT makes any cash dividend or distribution to all or substantially all holders of outstanding Host REIT Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of Host REIT) during any calendar quarter, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x SP0 /(SP0 - C) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such distribution; ER1 = the new Exchange Rate immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of Host REIT Common Stock for the ten (10) consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the day prior to the Ex-Dividend Date for such distribution; and C = the aggregate amount in cash per share that Host REIT distributes to holders of Host REIT Common Stock in a calendar quarter; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Exchangeable Debentures shall have the right to receive on the date such cash is distributed to holders of Host REIT Common Stock, for each Exchangeable Debenture, the amount of cash such holder of Exchangeable Debentures would have received had such holder of Exchangeable Debentures owned a number of shares of Host REIT Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the Ex-Dividend Date for such dividend or distribution, and the aggregate principal amount of Exchangeable Debentures held by such Holder and the denominator of which is one thousand dollars ($1,000). Notwithstanding the foregoing, the Exchange Rate will only be adjusted for that portion of the adjustment required by this paragraph (d) for which no adjustment to the Exchange Rate has yet been made. An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. If Host REIT makes a dividend or distribution to all or substantially all holders of Host REIT Common Stock that allows holders to elect between cash and/or shares of Host REIT Common Stock, adjustments to the Exchange Rate shall be made pursuant to this paragraph (d) only, and shall be made as if the entire dividend amount declared by Host REIT is distributed in cash (notwithstanding the actual cash component of such distribution), and no further adjustments or readjustments shall be made with respect to such dividend or distribution.
(e) If Host REIT or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Host REIT Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Host REIT Common Stock exceeds the Closing Sale Price of a share of Host REIT Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 x (AC + (SP1 x OS1))/(SP1 x OS0) where ER0 = the Exchange Rate in effect at the close of business on the last Business Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires; ER1 = the new Exchange Rate in effect immediately following the last Business Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by Host REIT’s Board of Directors) paid or payable for Host REIT Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Host REIT Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Host REIT Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Host REIT Common Stock pursuant to such tender offer or exchange offer); and SP1 = the average of the Closing Sales Prices of Host REIT Common Stock for the ten (10) consecutive Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) will occur on the tenth Trading Day from and including the Trading Day next succeeding the Effective Date of the tender offer or exchange offer; provided that in respect of any exchange within the ten (10) Trading Days following the Trading Day next succeeding the Effective Date of the tender offer or exchange offer, references within this paragraph (e) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between Trading Day next succeeding the Effective Date of such tender offer or exchange offer and the exchange date in determining the Applicable Exchange Rate. If Host REIT or one of its Subsidiaries is obligated to purchase Host REIT Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made. Notwithstanding the foregoing, if any adjustment to the Exchange Rate described in clauses (a) to (e) above becomes effective on any Ex-Dividend Date or Effective Date and a Holder that has exchanged its Exchangeable Debentures would (1) receive shares of Host REIT Common Stock based on an adjusted Exchange Rate and (2) be a record holder of such shares of Host REIT Common Stock on the record date for the dividend, distribution or other event giving rise to the adjustment, then, in lieu of receiving shares of Host REIT Common Stock at such an adjusted Exchange Rate, such Holder shall receive a number of shares of Host REIT Common Stock based on an unadjusted Exchange Rate and will participate in the related dividend, distribution or other event giving rise to the adjustment.
(f) If Host REIT has in effect a stockholder’s rights plan while any Exchangeable Debentures remain outstanding, Holders of Exchangeable Debentures will receive, upon an exchange of Exchangeable Debentures in respect of which the Company elects to deliver any shares of Host REIT Common Stock, in addition to such shares of Host REIT Common Stock, rights under Host REIT’s stockholder rights plan unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from Host REIT Common Stock. If the rights provided for in the stockholder’s rights plan adopted by Host REIT have separated from Host REIT Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Exchangeable Debentures would not be entitled to receive any rights in
Appears in 1 contract
Sources: Supplemental Indenture (Host Hotels & Resorts, Inc.)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Company issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Company effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS1 / OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date open of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding business on the Exex-Dividend Date dividend date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the open of business on the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to giving effect to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after giving effect to such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Company distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 X) / (OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exopen of business on the ex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exopen of business on the ex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exopen of business on ex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicableevent; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues to all holders of Common Stock any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 ER’ = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for after such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such issuanceevent; OS0 = the number of shares of Common Stock outstanding immediately prior to such event; and OS’ = the Ex-Dividend Date number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the record date fixed for such determination. If any dividend or distribution of the type described in this Section 8.04(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 Exchange Rate shall be 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 Exchange Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.
(b) In case Parent shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants or convertible securities entitling them (for a period expiring within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Exchange Rate shall be adjusted based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to such event; ER’ = the Exchange Rate in effect immediately after such event; OS0 = the number of shares of Common Stock outstanding immediately prior to such event;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Company issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Company effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS1 / OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Company distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 forty-five (45) days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 X) / (OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; X = the aggregate number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by the Company for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued.
(c) If the Company distributes shares of capital stock, evidences of indebtedness or other assets or property of the Company to all holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ▇▇▇ / (▇▇▇ – FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date or the ex-dividend date for such distribution. provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Company are distributed to holders of Common Stock, for each Note, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Company such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective on the ex-dividend date for such distribution. If the Company distributes to all holders of Common Stock capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), the Exchange Rate in effect immediately following the 10th Trading Day from and including the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0) / MP0 where ER0 = the Exchange Rate in effect on the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Company distributes cash to all or substantially all holders of outstanding Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up or any regular quarterly cash dividend on the Common Stock to the extent that the aggregate amount of such regular quarterly cash dividend per share of Common Stock does not exceed $0.475 for the relevant quarterly period ($0.475 being the “Reference Dividend Amount”)), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (SP0 – RDA) / (SP0 – C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution; RDA = the Reference Dividend Amount; and C = the amount in cash per share that the Company distributes to holders of Common Stock. provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend Amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend Amount will be deemed to be zero.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × (AC + (SPI × OS1)) / (SP1 × OS0) where ER0 = the Exchange Rate in effect on the Trading Day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second Trading Day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Common Stock for the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective on the second day immediately following the Expiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) If the Company has in effect a rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes, in addition to Common Stock, if any, rights under the Company’s shareholder rights agreement unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by the Company have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any shares of Common Stock delivered upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if the Company had distributed, to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to paragraphs (a) through (f) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law, increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or the Company. If the Issuer makes such determination, it will be conclusive and the Issuer will mail to Holders of the Notes and the Trustee a notice of the increased Exchange Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect in accordance with applicable law. The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Notes participate in the dividend, distribution or transaction that would otherwise result in an adjustment to the Exchange Rate at the same time as holders of the Common Stock and as if such Holders of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date or effective date for the relevant dividend, distribution or transaction, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand ($1,000). Notwithstanding anything to the contrary contained herein, in addition to the other events set forth herein on account of which no adjustment to the Exchange Rate shall be made, the Applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Issuer or those of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) the issuance of any Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director, trustee or consultant benefit plan, employee agreement or arrangement or
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by if any of the Issuer as follows:following events occurs. As used herein, the “Adjustment Date” for any issuance, dividend or distribution means the Ex-Dividend Date for such issuance, dividend or distribution.
(a) If the Parent Guarantor MLP, at any time or from time to time while any of the Notes are outstanding, issues shares of Common Stock Units as a dividend or distribution on the Common Stock to all holders of Common StockUnits, or if the Parent Guarantor MLP effects a share unit split or share unit combination, then the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend open of business on the Adjustment Date, or distribution or immediately prior to the open of business on the effective date of such share unit split or share unit combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend open of business on such Adjustment Date for such dividend or distribution or the effective date of such share split or share combinationdate, as applicable; OS0 = the number of shares Common Units outstanding immediately prior to the open of business on such Adjustment Date or effective date, as applicable; and OS1 = the number of Common Stock Units outstanding immediately after giving effect to such dividend, distribution, unit split or unit combination. Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Adjustment Date for such dividend or distribution, or the effective date of for such share unit split or share unit combination, as applicable; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph (aSection 13.03(a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that which would then be have been in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor MLP, at any time or from time to time while any of the Notes are outstanding, issues to all or substantially all holders of Common Stock Units any rights, warrants, options or other securities warrants entitling them for a period of not more than 45 60 calendar days after the date of such issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofUnits, in either case at an exercise a price per share of Common Stock or a conversion price per share unit less than the Closing Sale Price average of the Daily VWAP of the Common Stock Units for the 10 consecutive Trading Days ending on the Business Trading Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend open of business on the Adjustment Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for open of business on such issuanceAdjustment Date; OS0 = the number of shares of Common Stock Units outstanding immediately prior to the open of business on such Adjustment Date; X = the total number of Common Units issuable pursuant to such rights, options or warrants; and Y = the number of Common Units equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Daily VWAP of the Common Units over the 10 consecutive Trading Days ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. To the extent such rights, options or warrants are not exercised prior to their expiration or termination, the Exchange Rate shall be readjusted to the Exchange Rate which would then be in effect had the adjustments made with respect to the issuance of such rights, options or warrants been made on the basis of the delivery of only the number of Common Units actually delivered. In the event that such rights, options or warrants are not so issued, the Exchange Rate shall again be adjusted to be the Exchange Rate which would then be in effect if the date fixed for the determination of holders of Common Units entitled to receive such rights, options or warrants had not been fixed. For purposes of this clause (b) in determining whether any rights, options or warrants entitle the Holder to subscribe for or purchase Common Units at a price per unit less than the average of the Last Reported Sale Prices of the Common Units for the 10 consecutive Trading Days ending on the Trading Day immediately preceding the date of announcement of such issuance, there shall be taken into account any consideration received by the Company in respect of such issuance of such rights, options or warrants and any consideration payable upon exercise thereof, with the value of such consideration, if not in the form of cash, to be reasonably determined in good faith by the Board of Directors. For the avoidance of doubt, no adjustment shall be made for any rights offering made to non-affiliate holders of the Common Units.
(c) If the MLP, at any time or from time to time while the Notes are outstanding, distributes shares of any class of Capital Stock of the MLP, evidences of its indebtedness, other assets or property of the MLP or rights, options or warrants to acquire the MLP’s Capital Stock or other securities to all or substantially all holders of its Common Units, excluding:
(i) dividends or distributions as to which an adjustment was effected pursuant to Section 13.03(a) and rights, options or warrants referred to in Section 13.03(b);
(ii) dividends or distributions paid exclusively in cash;
(iii) dividends or distributions of Reference Property in exchange for Common Units in connection with a transaction described in Section 13.06; and
(iv) Spin-offs to which provisions set forth below in this Section 13.03(c) shall apply; then the Exchange Rate shall be increased based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the open of business on the Adjustment Date for such distribution; ER1 = the Exchange Rate in effect immediately after the open of business on such Adjustment Date; SP0 = the average of the Daily VWAP of the Common Units over the 10 consecutive Trading Days ending on the Trading Day immediately preceding the Adjustment Date for such distribution; and FMV = the Fair Market Value (as reasonably determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding Common Unit on the Adjustment Date for such distribution. Such adjustment shall become effective immediately after the open of business on the Adjustment Date for such distribution. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 13.03(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 average of the Daily VWAP of the Common Unit. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing adjustment, each Holder shall receive on the date on which the relevant Capital Stock, evidences of indebtedness, other assets or property of the MLP or rights, options or warrants to acquire the MLP’s Capital Stock or other securities are distributed to holders of Common Units, in respect of each $1.00 principal amount thereof, the amount of Capital Stock, evidences of indebtedness, other assets or property of the MLP or rights, options or warrants to acquire the MLP’s Capital Stock or other securities such Holder would have received in such distribution had such Holder exchanged such Note (taking into account principal and interest) on the record date for such distribution and owned the number of Common Units such Holder would have received upon such exchange based on the Exchange Rate as of the Adjustment Date for such distribution.
(1) With respect to an adjustment pursuant to this Section 13.03(c) where there has been a payment of a dividend or other distribution on the Common Units of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, in each case which are, or will be, listed on a national securities exchange (a “Spin-off”), the Exchange Rate shall be increased based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the end of the Valuation Period; ER1 = the Exchange Rate in effect immediately after the end of the Valuation Period; FMV0 = the average of the Daily VWAP of the Capital Stock or similar equity interest distributed to holders of Common Units applicable to one Common Unit over the first 10 consecutive Trading Days after, and including, the Ex-Dividend Date of the Spin-off (the “Valuation Period”); and MP0 = the average of the Daily VWAP of Common Units over the Valuation Period.
(1) will occur on the Business Day immediately after the last day of the Valuation Period; provided that in respect of any exchange of Notes during the Valuation Period, references above with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-off and the Notes Maturity Date in determining the Exchange Rate. If any dividend or distribution of the type described in this Section 13.03(c) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate which would have been in effect if such dividend or distribution had not been declared. For the avoidance of doubt, no adjustment shall be made for any rights offering made to non-affiliate holders of the Common Units.
(d) [Reserved].
(e) If the MLP or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Units, to the extent that the cash and value of any other consideration included in the payment per Common Unit exceeds the average of the Daily VWAP of the Common Units over the ten consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exchange Rate shall be increased based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; ER1 = the Exchange Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as reasonably determined in good faith by the Board of Directors) paid or payable for Common Units purchased in such tender or exchange offer; OS0 = the number of Common Units outstanding immediately prior to the time such tender or exchange offer expires (prior to giving effect to the purchase of all Common Units accepted for purchase or exchanged in such tender or exchange offer); OS1 = the number of Common Units outstanding immediately after the time such tender or exchange offer expires (after giving effect to the purchase of all Common Units accepted for purchase or exchanged in such tender or exchange offer); and SP1 = the average of the Daily VWAP of the Common Units over the 10 consecutive Trading Days commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Exchange Rate under this Section 13.03(e) shall occur immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any exchange of Notes within 10 Trading Days immediately following, and including, the expiration date of any tender or exchange offer, references above with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and the Notes Maturity Date in determining the Exchange Rate. If the MLP or one of its Subsidiaries is obligated to purchase Common Units pursuant to any such tender or exchange offer, but the MLP or such Subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made. For purposes of this subsection (e), the term “tender offer” is used as such term is used in the Exchange Act and the term “exchange offer” means an exchange offer that constitutes a tender offer.
(f) Except as provided in Sections 13.03(a) or 13.03(b), if the MLP, at any time or from time to time while any of the Notes are outstanding, issues or sells (i) any Common Units at a price per unit that is less than the Common Unit Trading Price or (ii) any Common Unit Equivalents that entitle the holder thereof to subscribe for, purchase or exercise a conversion or exchange right for, Common Units at price per unit that is less than the Common Unit Trading Price, then, in each case, the Exchange Rate shall be increased based on the following formula: where ER0 = the Exchange Rate in effect immediately prior to the open of business on the date of such issuance or sale; ER1 = the Exchange Rate in effect immediately after the open of business on the date of such issuance or sale; OS0 = the number of Common Units outstanding immediately prior to the open of business on the date of such issuance or sale; X = (i) the total number of Common Units issued (in the case of an issuance or sale of Common Units) or (ii) the total number of Common Units issuable upon the full exercise, conversion or exchange of the Common Unit Equivalents issued or sold (in the case of an issuance or sale of Common Unit Equivalents); and Y = the number of Common Units equal to the quotient of (A) the aggregate price payable (before the deduction of any underwriting or placement agency fees, discounts, commissions and expenses) (i) in respect of such Common Units issued or sold (in the case of an issuance or sale of Common Units) or (ii) in respect of the Common Units issuable upon exercise, conversion or exchange of the Common Unit Equivalents issued or sold (in the case of an issuance or sale of Common Unit Equivalents) divided by (B) the Common Unit Trading Price. The adjustment to the Exchange Rate under this Section 13.03(f) shall occur immediately after the open of business on the date of the issuance or sale of the Common Units or Common Unit Equivalents, as applicable. To the extent Common Unit Equivalents are not exercised, exchanged or converted prior to the expiration of the exercisability, exchangeability or convertibility thereof, the Exchange Rate shall be readjusted, as of such expiration date, to the Exchange Rate which would then be in effect had the adjustments made upon the distribution of such Common Unit Equivalents been made on the basis of the delivery of only the number of Common Units actually delivered. In determining whether any Common Unit Equivalents entitle the holders to subscribe for or purchase, or exercise a conversion or exchange right for, Common Units at less than the Common Unit Trading Price, and in determining the aggregate exercise, conversion or exchange price payable for such issuance;Common Units, there shall be taken into account any consideration received for such Common Unit Equivalents and the value of such consideration, if other than cash, shall be reasonably determined in good faith by the Board of Directors. If an adjustment to the Exchange Rate in respect of the issuance or sale of a Common Unit Equivalent has been previously made pursuant to Section 13.03(b), this Section 13.03(f) or Section 13.03(g), the exercise of such Common Unit Equivalent in accordance with its terms existing at the time such adjustment was made shall not result in a further adjustment pursuant to this Section 13.03(f) or Section 13.03(g). If an adjustment to the Exchange Rate in respect of the issuance or sale of a Common Unit Equivalent was not required by Section 13.03(b), this Section 13.03(f) or Section 13.03(g), the exercise of such Common Unit Equivalent in accordance with its terms existing at the time of issuance shall not result in an adjustment pursuant to this Section 13.03(f) or Section 13.03(g). Notwithstanding the foregoing, if an adjust
Appears in 1 contract
Sources: Indenture (Foresight Energy LP)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor Strategic Hotels issues shares of Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor Strategic Hotels effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective as of the open of business on (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues Strategic Hotels distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofStock, in either any case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Trading Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect immediately on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; X = the aggregate number of shares of Common Stock issuable pursuant to such rights, warrants or options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise all such rights, warrants or options and (B) the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Days ending on the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants or options. For purposes of this paragraph (b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Stock at less than the applicable Closing Sale Price of the Common Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration received by Strategic Hotels for such rights, warrants or options and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right, warrant or option described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such right, warrant or option had not been so issued. An adjustment to the Exchange Rate made pursuant to this paragraph (b) shall become effective at the open of bsuiness on the ex-dividend date for the relevant distribution.
(c) If Strategic Hotels distributes shares of capital stock, evidences of indebtedness or other assets or property of Strategic Hotels to all holders of Common Stock, excluding:
(A) dividends, distributions, rights, warrants or options referred to in paragraph (a) or (b) above;
(B) dividends or distributions paid exclusively in cash; and
(C) Spin-Offs described below in this paragraph (c), then the Exchange Rate will be increased based on the following formula: ER1 = ER0 × SP0/(SP0 – FMV) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate in effect immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of Common Stock on the Trading Day immediately preceding the ex-dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the record date and the ex-dividend date for such distribution; provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of Strategic Hotels is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of Strategic Hotels are distributed to holders of Common Stock, for each Note, the amount of shares of capital stock, evidences of indebtedness or other assets or property of Strategic Hotels such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph shall become effective as of the open of business on the ex-dividend date for such distribution. If Strategic Hotels distributes to all holders of Common Stock capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of Strategic Hotels (a “Spin-Off”), the Exchange Rate in effect immediately following the 10th Trading Day immediately following, and including, the effective date of the Spin-Off will be adjusted based on the following formula: ER1 = ER0 × (FMV0 + MP0)/MP0 where ER0 = the Exchange Rate in effect on the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; ER1 = the new Exchange Rate immediately after the 10th Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off; and MP0 = the average of the Closing Sale Prices of the Common Stock over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Exchange Rate made pursuant to the immediately preceding paragraph will occur as of the close of business on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10 Trading Days following the effective date of any Spin-Off, references within this paragraph (c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Exchange Date in determining the Applicable Exchange Rate. If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If Strategic Hotels distributes cash to all or substantially all holders of outstanding Common Stock (excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of Strategic Hotels or any regular quarterly cash dividend on the Common Stock to the extent that the aggregate amount of such regular quarterly cash dividend per share of Common Stock does not exceed $0.24 for the relevant quarterly period) (0.24 being the “Reference Dividend Amount”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 × ▇▇▇ /(▇▇▇ – C) where ER0 = the Exchange Rate in effect immediately prior to the ex-dividend date for such distribution; ER1 = the new Exchange Rate immediately on and after the ex-dividend date for such distribution; SP0 = the Closing Sale Price of Common Stock on the Trading Day immediately preceding the earlier of the record date and the ex-dividend date for such distribution; and C = the amount in cash per share that Strategic Hotels distributes to holders of Common Stock that exceeds the Reference Dividend Amount; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Notes shall have the right to receive on the date such cash is distributed to holders of Common Stock, for each Note, the amount of cash such holder of Notes would have received had such holder of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect immediately prior to the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become effective as of the open of business on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this paragraph (d) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend Amount is subject to adjustment in a manner inversely proportional to adjustments to the Exchange Rate; provided that no adjustment will be made to the Reference Dividend Amount for any adjustment made to the Exchange Rate under this paragraph (d). Notwithstanding the foregoing, if an adjustment is required to be made under this paragraph as a result of a distribution that is not a quarterly dividend, the Reference Dividend Amount will be deemed to be zero.
(e) If Strategic Hotels or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”), the Exchange Rate will be increased based on the following formula: ER1 = ER0 × (AC + (SPI × OS1))/(SP1 × OS0) where ER0 = the Exchange Rate in effect on the Trading Day immediately following the date such tender offer or exchange offer expires; ER1 = the Exchange Rate in effect on the second Trading Day immediately following the date such tender offer or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for the Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender offer or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender offer or exchange offer); and SP1 = the Closing Sale Price of the Common Stock for the Trading Day next succeeding the date such tender offer or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become effective as of the open of business on the second day immediately following the Expiration Time. If Strategic Hotels or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender offer or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to be the Exchange Rate that would be in effect if such tender offer or exchange offer had not been made.
(f) [Reserved];
(g) If Strategic Hotels has in effect a rights plan while any Notes remain outstanding, Holders of Notes will receive, upon an exchange of Notes, in addition to Common Stock, if any, rights under Strategic Hotels’ stockholder rights agreement unless, prior to exchange, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the rights plan adopted by Strategic Hotels have separated from the Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of any shares of Common Stock delivered upon an exchange of Notes, the Exchange Rate will be adjusted at the time of separation as if Strategic Hotels had distributed to all holders of Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Issuer may increase the Exchange Rate in order to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. The Issuer may also, from time to time, to the extent permitted by applicable law, increase the Exchange Rate by any amount for any period if the Issuer has determined that such increase would be in the best interests of the Issuer or Strategic Hotels. If the Issuer makes such determination, it will be conclusive and the Issuer will mail to Holders of the Notes a notice of the increased Exchange Rate and the period during which it will be in effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect in accordance with applicable law. The Issuer shall not make any adjustment to the Exchange Rate if Holders of the Notes are entitled participate in the dividend, distribution or transaction that would otherwise result in an adjustment to the Exchange Rate at the same time as holders of the Common Stock and as if such Holders of Notes owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the Exchange Rate in effect on the ex-dividend date or effective date for the relevant dividend, distribution or transaction, and the aggregate principal amount of Notes held by such Holder and the denominator of which is one thousand dollars ($1,000). Notwithstanding anything to the contrary contained herein, in addition to the other events set forth herein on account of which no adjustment to the Exchange Rate shall be made, the Applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Common Stock pursuant to any present or future plan providing for the reinvestment of d
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:
(a) If the Parent Guarantor issues shares of the Common Stock as a dividend or distribution on the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × ER0× OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination; ER1 = the new Exchange Rate in effect immediately after the ex-dividend date for such dividend or distribution, as applicableor the effective date of such share split or share combination; OS0 = the number of shares of Common Stock outstanding immediately prior to such dividend or distribution, or the effective date of such share split or share combination; and OS1 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately after such dividend or distribution distribution, or the effective date of such share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the ex-dividend date for such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution described in this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor issues distributes to all holders of Common Stock any rights, warrants, warrants or options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the time of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): formula: ER1 = ER0 × ER0× (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution; ER1 = the new Exchange Rate in effect on and immediately after the Exex-Dividend Date dividend date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Exex-Dividend Date dividend date for such issuancedistribution;
Appears in 1 contract
Sources: Indenture (First Industrial Lp)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the In case Parent Guarantor issues shares of shall issue Common Stock as a dividend or distribution on to holders of the outstanding Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock to all holders or combination into a lesser number of shares of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; ER1 ER¢ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicableevent; and OS1 OS¢ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the record date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 8.04(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 Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Trustees 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 Exchange Rate that would then be in effect if such dividend dividend, distribution, subdivision or distribution combination had not been declared.
(b) If the In case Parent Guarantor issues shall issue to all or substantially all holders of its outstanding Common Stock any rights, warrants, options warrants or other convertible securities entitling them (for a period of not more than 45 expiring within sixty (60) calendar days after the date of issuance thereof thereof) to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or at a conversion price per share less than the Closing Last Reported Sale Price of the Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will shall be adjusted based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rights, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) formula: where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuancedistribution; ER1 ER¢ = the Exchange Rate in effect on and immediately after as of the Ex-Dividend Date for such issuancedistribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such issuanceevent;
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer as follows:Parent if any of the following events occurs following the time of Closing.
(a) If the Parent Guarantor exclusively issues shares of Parent Common Stock as a dividend or distribution on all shares of the Common Stock to all holders of Parent Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will shall be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where where, ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend close of the business on the Record Date for of such dividend or distribution distribution, or immediately prior to the effective date open of business on the Effective Date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Ex-Dividend close of business on such Record Date for or immediately after the open of business on such dividend or distribution or the effective date of such share split or share combinationEffective Date, as applicable; OS0 = the number of shares of Parent Common Stock outstanding immediately prior to the close of business on such Record Date or immediately prior to the open of business on such Effective Date, as applicable, before giving effect to such dividend distribution shares split or share combination; and OS1 = the number of shares of Parent Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 5.03(a) shall become effective immediately after the close of business on the Ex-Dividend Record Date for such dividend or distribution, or immediately after the effective date open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 5.03(a) is declared but not so paid or made, or any share split or combination of the type described in this Section 5.03(a) is announced but the outstanding shares of Parent Common Stock are not split or combined, as the case may be, the Exchange Rate shall be immediately readjusted, effective as of the date the Parent Board determines not to pay such dividend or distribution, or not to split or combine the outstanding shares of Parent Common Stock, as the case may be, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared or such share split or combination had not been announced.
(b) If the Parent issues to all holders of the Parent Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the date of such issuance, to subscribe for or purchase shares of the Parent Common Stock, at a price per share less than the average of the Last Reported Sale Prices of the Parent Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Exchange Rate will be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the close of business on the Record Date for such issuance; and OS1 ER1 = the Exchange Rate in effect immediately after the close of business on such Record Date; OS0 = the number of shares of Parent Common Stock outstanding immediately prior to the close of business on such Record Date; X = the total number of shares of Parent Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Parent Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Parent Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 5.03(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend issuance. To the extent that such rights, options or distribution warrants are not exercised prior to their expiration or shares of Parent Common Stock are not delivered upon the effective expiration of such rights, options or warrants, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Parent Common Stock actually delivered. If such rights, options or warrants are not so issued, or if such rights, options or warrants are not exercised prior to their expiration, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such issuance had not occurred. For purposes of this Section 5.03(b), in determining whether any rights, options or warrants entitle the holders of the Parent Common Stock to subscribe for or purchase shares of the Parent Common Stock at a price per share less than such average of the Last Reported Sale Prices of the Parent Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of the Parent Common Stock, there shall be taken into account any consideration received by the Parent for such 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 Parent Board.
(c) If the Parent distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Parent or rights, options or warrants to acquire its Capital Stock or other securities, to all holders of the Parent Common Stock, excluding: (i) dividends or distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 5.03(a) or Section 5.03(b) hereof; (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 5.03(d) hereof; and (iii) Spin-Offs as to which the provisions set forth below in this Section 5.03(c) shall apply; (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities of the Parent, the “Distributed Property”), then the Exchange Rate shall be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the close of business on the Record Date for such distribution; ER1 = the Exchange Rate in effect immediately after the close of business on such Record Date; SP0 = the average of the Last Reported Sale Prices of the Parent Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Parent Board) of the Distributed Property with respect to each outstanding share split or share combination, as applicable, as if of the Parent Common Stock on the Record Date for such dividend, distribution, split or combination occurred at that time. Any increase made under the portion of this Section 5.03(c) above shall become effective immediately after the close of business on the Record Date for such distribution. If any dividend or such distribution described in this paragraph (a) is declared but not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
. Notwithstanding the foregoing, if “FMV” (bas defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall be entitled to receive at the time of Exchange of the Notes pursuant to Sections 2.01 and 5.02 hereof, in respect of each $1,000 principal amount thereof, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Parent Common Stock equal to the Exchange Rate in effect on the Record Date for the distribution. If the Parent Guarantor issues Board determines the “FMV” (as defined above) of any distribution for purposes of this Section 5.03(c) by reference to all holders the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Parent Common Stock any rightsover the 10 consecutive Trading Day period ending on, warrantsand including, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share less than the Closing Sale Price of Common Stock on the Business Trading Day immediately preceding the time Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section 5.03(c) where there has been a payment of announcement a dividend or other distribution on the Parent Common Stock of such issuanceshares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit or investment of the Parent that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rightsformula: where, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such issuanceend of the Valuation Period (as defined below); ER1 = the Exchange Rate in effect on and immediately after the end of the Valuation Period; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Parent Common Stock applicable to one share of the Parent Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Parent Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date for such issuanceof the Spin-Off (the “Valuation Period”); OS0 and MP0 = the average of the Last Reported Sale Prices of the Parent Common Stock over the Valuation Period. The adjustment to the Exchange Rate under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that in respect of any Exchange of Notes during the Valuation Period, references in the portion of this Section 5.03(c) related to Spin-Offs with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of shares of Common Stock outstanding immediately prior to Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate. For purposes of this Section 5.03(c) (and subject in all respect to Section 5.05), rights, options or warrants distributed by the Parent to all holders of the Parent Common Stock entitling them to subscribe for or purchase shares of the Parent’s Capital Stock, including Parent Common 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 issuance;shares of the Parent Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Parent Common Stock, shall be deemed not to have been distributed for purposes of this Section 5.03(c) (and no adjustment to the Exchange Rate under this Section 5.03(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 5.03(c). If any such right, option or warrant is subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 5.03(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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 Parent 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 Parent Common Stock as of the date of such redemption or purchase, 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 Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued. For purposes of Section 5.03(a), Section 5.03(b) and this Section 5.03(c), if any dividend or distribution to which this Section 5.03(c) is applicable also includes one or both of:
Appears in 1 contract
Adjustment of Exchange Rate. The Exchange Rate shall will be adjusted from as described in this Section 14.04, except that the Company shall not make any adjustment to the Exchange Rate if Holders participate (other than in the case of a share split or share combination), at the same time and upon the same terms as holders of the Common Shares and as a result of holding the Notes, in any of the transactions described below without having to time exchange their Notes, as if they held a number of Common Shares equal to the applicable Exchange Rate, multiplied by the Issuer as follows:principal amount (expressed in thousands) of Notes held by such ▇▇▇▇▇▇.
(a) If the Parent Guarantor REIT exclusively issues shares of Common Stock Shares as a dividend or distribution on the all or substantially all Common Stock to all holders of Common StockShares, or if the Parent Guarantor REIT effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 × OS1/OS0 where where, ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for of such dividend or distribution distribution, or immediately prior to the Open of Business on the effective date of such share split or share combination, as applicable; ER1 = the Exchange Rate in effect on and immediately after the Open of Business on such Ex-Dividend Date for or such dividend or distribution or the effective date of such share split or share combinationdate, as applicable; OS0 = the number of shares Common Shares outstanding immediately prior to the Open of Common Stock outstanding Business on the such Ex-Dividend Date for or such dividend or effective date, as applicable, before giving effect to such dividend, distribution, or the effective date of such share split or share combination, as applicable; and OS1 = the number of shares Common Shares outstanding immediately after giving effect to such dividend, distribution, share split or share combination, as applicable. Any adjustment made under this Section 14.04(a) shall become effective immediately after the Open of Common Stock outstanding Business on the Ex-Dividend Date for such dividend or distribution distribution, or immediately after the Open of Business on the effective date of for such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that time. If any dividend or distribution of the type described in this paragraph (aSection 14.04(a) is declared but not so paid or made, the Exchange Rate shall be readjusted immediately readjusted, effective as of the date the Board of Trustees determines not to pay such dividend or distribution to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor REIT issues to all or substantially all holders of the Common Stock Shares any rights, warrants, options or warrants (other securities than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which the provisions set forth in Section 14.04(c) shall apply) entitling them them, for a period of not more than 45 calendar days after the date of issuance thereof such issuance, to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereofShares, in either case at an exercise a price per share of Common Stock or a conversion price per share that is less than the Closing average of the Last Reported Sale Price Prices of the Common Stock on Shares for the Business 10 consecutive Trading Day-period ending on, and including, the Trading Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will be adjusted increased based on the following formula (provided that the Exchange Rate will be readjusted to the extent that such rightsformula: where, warrants, options, or other securities or convertible securities are not exercised or converted prior to the expiration of the exercisability or convertibility thereof): ER1 = ER0 × (OS0 + X)/(OS0 + Y) where ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance; ER1 = the Exchange Rate in effect on and immediately after the Open of Business on such Ex-Dividend Date; OS0 = the number of Common Shares outstanding immediately prior to the Open of Business on such Ex-Dividend Date; X = the total number of Common Shares issuable pursuant to such rights, options or warrants; and Y = the number of Common Shares equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day-period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 14.04(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance; OS0 = . To the extent that such rights, options or warrants are not exercised prior to their expiration or Common Shares are not delivered upon the expiration of such rights, options or warrants, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Common Shares actually delivered. If such rights, options or warrants are not so issued, or if such rights, options or warrants are not exercised prior to their expiration, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such Record Date for such issuance had not occurred. For purposes of this Section 14.04(b) and Section 14.01(b)(4)(A), in determining whether any rights, options or warrants entitle the holders of the Common Shares to subscribe for or purchase Common Shares at a price per share less than such average of the Last Reported Sale Prices of the Common Shares for the 10 consecutive Trading Day-period ending on the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the REIT for such 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 Trustees.
(c) If the REIT distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the REIT or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock outstanding Shares, excluding: (1) dividends or distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 14.04(a) or Section 14.04(b); (2) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 14.04(d); (3) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply; (4) rights issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 14.10; (5) a distribution solely pursuant to a tender offer or exchange offer for Common Shares, as to which the provisions of Section 14.04(e) will apply; and (6) a distribution solely pursuant to a Merger Event, as to which the provisions of Section 14.07 will apply, then the Exchange Rate shall be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;distribution; ER1 = the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Common Share over the 10 consecutive Trading Day-period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Trustees in good faith) of the shares of the REIT’s Capital Stock, evidences of the REIT’s indebtedness, other assets, or property of the REIT or rights, options or warrants to acquire the REIT’s Capital Stock or other securities distributed with respect to each outstanding Common Share on the Ex-Dividend Date for such distribution. If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder of Notes shall receive, in respect of each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of the Common Shares, the amount and kind of the REIT’s Capital Stock, evidences of the REIT’s indebtedness, other assets or property of the REIT or rights, options or warrants to acquire the REIT’s Capital Stock or other securities that such Holder would have received as if such Holder owned a number of Common Shares equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. Any increase made under the portion of this Section 14.04(c) above will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Shares of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary of the REIT or other business unit of the REIT, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the distribution) on a United States national securities exchange (a “Spin-Off”), the Exchange Rate will be increased based on the following formula: where, ER0 = the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; ER1 = the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Shares applicable to one Common Share over the first 10 consecutive Trading Day-period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Shares over the Valuation Period. The adjustment in the Exchange Rate made under the preceding paragraph of this Section 14.04(c) will be made immediately after the Open of Business on the day after the last day of the Valuation Period, but will be given effect as of the Open of Business on the Ex-Dividend Date of the Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of any exchange, references within this Section 14.04(c) to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected Daily Exchange Values in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Cash Settlement Averaging Period. For purposes of determining the applicable Exchange Rate, in respect of any exchange during the 10 Trading Days commencing on the Ex-Dividend Date for any Spin-Off, references within the portion of this Section 14.04(c) related to “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the relevant Exchange Date. Subject to Section 14.10, for the purposes of this Section 14.04(c), rights, options or warrants distributed by the REIT to all holders of Common Shares entitling them to subscribe for or purchase shares of the REIT’s Capital Stock (either initially or under certain circumstances), which rights, options 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 14.04(c), (and no adjustment to the Exchange Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 14.04(c). If any such right, option or warrant, distributed prior to the Issue Date is subject to events, upon the occurrence of which such right, option or warrant becomes exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date of such deemed distribution (in which case the original right, option or warrant shall be deemed to terminate and expire on such date without exercise by any of the holders). In addition, in the event of any distribution or deemed distribution of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants which shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed 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 holders of Common Shares with respect to such rights, options or warrants (assuming each such holder had retained such rights, options or warrants), made to all holders of Common Shares as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants which shall have expired or been terminated without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights and warrants had not been issued. For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) applies includes one or both of: (A) a dividend or distribution of Common Shares to which Section 14.04(a) also applies (the “Clause A Distribution”); or
Appears in 1 contract
Sources: Indenture (Federal Realty OP LP)
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Issuer Company as follows:
(a) If the Parent Guarantor Issuer issues shares of Common Stock as a dividend or distribution on shares of the Common Stock to all holders of Common Stock, or if the Parent Guarantor effects a share split or share combination, the Exchange Rate will be adjusted based on the following formula: ER1 = ER0 ER’= ER 0 × OS1/OS0 where ER0 OS’ OS 0 where, ER 0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; ER1 event ER’ = the Exchange Rate in effect on and immediately after the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or share combination, as applicable; OS0 event OS 0 = the number of shares of Common Stock outstanding on the Ex-Dividend Date for immediately prior to such dividend or distribution, or the effective date of such share split or share combination, as applicable; and OS1 event OS’ = the number of shares of Common Stock outstanding immediately after such event. Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for such dividend or distribution or the effective date of such share split or share combination, as applicable, as if such dividend, distribution, split or combination occurred at that timedetermination. If any dividend or distribution of the type described in this paragraph (aSection 15.05(a) is declared but not so paid or made, the Exchange Rate shall again be readjusted adjusted to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Parent Guarantor Issuer issues to all or substantially all holders of its Common Stock any rights, warrants, options rights or other securities warrants entitling them such holders for a period of not more than 45 calendar days after the date of issuance thereof to subscribe for or purchase Common Stock or securities convertible into Common Stock within 45 days after the issuance thereof, in either case at an exercise price per share shares of Common Stock or Stock, at a conversion price per share less than the Closing Last Reported Sale Price of Common Stock on the Business Day immediately preceding the time date of announcement of such issuance, the Exchange Rate will be adjusted based on the following formula formula: ER’=ER 0 × OS 0 + X OS 0 + Y where, ER 0 = the Exchange Rate in effect immediately prior to such event ER’ = the Exchange Rate in effect immediately after such event OS 0 = the number of shares of Common Stock outstanding immediately prior to such event X = the total number of shares of Common Stock issuable pursuant to such rights or warrants Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights divided by the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the Stock Record Date for the issuance of such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. To the extent that shares of Common Stock are not delivered prior to the expiration of such rights or warrants, the Exchange Rate shall be readjusted to the Exchange 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 Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale 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 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 Company’s Board of Directors.
(provided that c) If the Issuer distributes shares of its capital stock, evidences of its indebtedness or other assets or property of the Issuer to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in clause (a) or (b) above; and
(ii) dividends or distributions paid exclusively in cash; then the Exchange Rate will be readjusted adjusted based on the following formula: ER’=ER 0 × SP 0 SP 0 – FMV where, ER 0 = the Exchange Rate in effect immediately prior to such distribution ER’ = the extent that Exchange Rate in effect immediately after such rightsdistribution SP 0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such distribution FMV = the fair market value (as determined by the Company’s Board of Directors) of the shares of capital stock, warrantsevidences of indebtedness, optionsassets or property distributed with respect to each outstanding share of Common Stock on the Stock Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other securities or convertible securities are not exercised or converted business unit (a “Spin-Off”) the Exchange Rate in effect immediately before 5:00 p.m., New York City time, on the Stock Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula: ER’=ER 0 × FMV 0 + MP 0 MP 0 where, ER 0 = the Exchange Rate in effect immediately prior to such distribution ER’ = the expiration Exchange Rate in effect immediately after such distribution FMV 0 = the average of the exercisability Last Reported Sale Prices of the capital stock or convertibility thereof): ER1 similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off MP 0 = ER0 the average of the Last Reported Sale Prices of Common Stock over the first ten consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off.
(d) If the Issuer makes any cash dividend or distribution during any of the Issuer’s quarterly fiscal period to all or substantially all holders of Common Stock, the Exchange Rate will be adjusted based on the following formula: ER’=ER 0 × (OS0 + X)/(OS0 + Y) where ER0 SP 0 SP 0 – C where, ER 0 = the Exchange Rate in effect immediately prior to the Ex-Dividend Stock Record Date for such issuance; ER1 dividend or distribution ER’ = the Exchange Rate in effect immediately after the Stock Record Date for such dividend or distribution SP 0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Business Day immediately preceding the ex-date for such dividend or distribution C = the amount in cash per share the Issuer dividends or distributes to holders of Common Stock. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the date for such determination.
(e) If the Issuer or any of its subsidiaries purchases shares of Common Stock pursuant to a tender or exchange offer which involves an aggregate per share consideration that exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (such last date, the “Expiration Time”), the Exchange Rate will be adjusted based on the following formula: ER’=ER 0 × AC + (SP’×OS’) OS 0 × SP’ where, ER 0 = the Exchange Rate in effect on the date such tender or exchange offer expires ER’ = the Exchange Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the aggregate value of all cash and immediately after any other consideration (as determined by the Ex-Dividend Date Company’s Board of Directors) paid or payable for shares purchased in such issuance; OS0 tender or exchange offer OS 0 = the number of shares of Common Stock outstanding immediately prior to the Exdate such tender or exchange offer expires OS’ = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires SP’ = the average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the Issuer is obligated to purchase shares pursuant to any such tender or exchange offer, but the Issuer is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Exchange Rate shall again be adjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made. If, however, the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made.
(f) Notwithstanding the foregoing provisions of this 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 exchange, for any distribution described therein if the holder will otherwise participate in the distribution without exchange of such holder’s Notes.
(g) The Company may (but is not required to) make such increases in the Exchange Rate, in addition to those required by clauses (a) through (e) of this Section 14.05 as the Company’s 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 in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Exchange Rate by any amount for any period of at least 20 days if the Company’s 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.
(h) All calculations under this Article 14 shall be made by the Company and shall be made to the nearest cent or to the nearest one-Dividend ten thousandth (1/10,000) of a share, as the case may be. The Company will not be required to make an adjustment in the Exchange Rate unless the adjustment would require a change of at least 1% in the Exchange Rate. However, the Company will carry forward any adjustments that are less than 1% of the Exchange Rate and make such carried forward adjustments, regardless of whether aggregate adjustment is less than 1% within one year of the first such adjustment carried forward, upon redemption, upon a Fundamental Change or upon the Stated Maturity. To the extent the Notes become exchangeable into cash, assets or property (other than capital stock of the Issuer or securities to which Section 14.06 or 14.07 applies), no adjustment shall be made thereafter pursuant to this Section 14.05 as to the cash, assets or property.
(i) Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Exchange Agent other than the Trustee an Officers’ Certificate setting forth the Exchange 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 Exchange Rate and may assume that the last Exchange 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 Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective. The Company or, at the Company’s request after the Company has prepared and delivered such notice to the Trustee, the Trustee in the name and at the expense of the Company, shall notify the holders of the adjustment to the Exchange Rate in the manner provided in Section 16.03, and the Company shall also publicly announce such information by publication on the Company’s Web site or through such other public medium as it may use at such time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(j) In any case in which this Section 14.05 provides that an adjustment shall become effective immediately after (1) a record date or Stock Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to Section 14.05(a), (3) a date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to Section 14.05(b) or (4) the Expiration Time for any tender or exchange offer pursuant to Section 14.05(e), (each a “Determination Date”), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note exchanged after such issuance;Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such exchange by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such exchange before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 14.03. For purposes of this Section 14.05(j), the term “Adjustment Event” shall mean:
Appears in 1 contract
Sources: Indenture (O Reilly Automotive Inc)