Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights Sample Clauses: 2k Samples

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. (a) The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Section 11(a)(ii) Event shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 3 contracts

Sources: Shareholder Rights Agreement (Sunlink Health Systems Inc), Shareholder Rights Agreement (Sunlink Health Systems Inc), Shareholder Rights Agreement (Sunlink Health Systems Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the Board of Directors of the Company, after receiving advice from one or more nationally recognized investment banking firms, to be in the best interests of the Company and its shareholders (a "Qualifying Offer"), after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (as defined in and determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the Board of Directors of the Company has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Board of Directors of the Company ~~based upon~~ after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. The Company shall notify the Rights Agent of the suspension of the exercisability of the Rights, and provide the Rights Agent with a copy of such public announcement. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days ~~immediately prior to~~ (as such ~~date; provided, however, that in the event that the current market price of a Common Share~~ term is ~~determined during a period following the announcement by the Company of (A~~hereinafter defined) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.immed

Appears in 3 contracts

Sources: Rights Agreement (Aqua America Inc), Rights Agreement (Aqua America Inc), Rights Agreement (Aqua America Inc)

Appears in 3 contracts

Sources: Rights Agreement (C3 Inc /Nc/), Rights Agreement (C3 Inc /Nc/), Rights Agreement (C3 Inc /Nc/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number ~~and kind~~ of shares ~~covered by~~ of Preferred Stock or other securities or property purchasable upon exercise of each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or other capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock or other capital stock transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or other capital stock of the Company issuable upon exercise of one Right. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24 of this Agreement, in the event that any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become~~ becomes an Acquiring Person is (other than pursuant to a transaction ~~set forth in~~ to which the provisions of Section ~~13(a) hereof. Promptly~~ 13 hereof apply), then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided ~~below~~ in this Section 11 and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable in accordance with the terms of this Agreement, and in lieu of ~~such number of one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, ~~following~~ following, such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). From and after the time of occurrence of a Section 13 Event, any Rights that theretofore have not been exercised pursuant to this Section 11(a)(ii) shall thereafter be exercisable only in accordance with Section 13 and not pursuant to this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the ~~Company’s Articles of Incorporation~~ Corporation's Restated Charter but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with ~~the foregoing subparagraph (ii~~Section 11(a)(ii) ~~of this Section 11(a)~~hereof, the ~~Company~~ Corporation shall: (A) determine the excess (such Excess, the "Spread") of (1) the value of the Adjustment Shares issuable upon the exercise of a Right in accordance with Section 11(a)(ii) hereof (the “"Current Value”") over (2) the Purchase Price (~~such excess, the “Spread”~~as adjusted in accordance with Section 11(a)(ii) hereof), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common Shares~~ shares of preferred stock or other equity securities of the ~~Company~~ Corporation (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of Preferred Stock and other shares, or units of shares, of preferred stock which the Board of Directors ~~of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock or other equity securities or units thereof being referred to as "Common Stock Equivalents)), (4) debt securities of the ~~Company~~Corporation, (5) other assets, or (6) any combination of the ~~foregoing~~foregoing having a value that, ~~having~~ when added to the value of the shares of Common Stock actually issued upon exercise of such Right, shall have an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the ~~Company~~ Corporation shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the ~~Company’s~~ Corporation's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the ~~Company~~ Corporation shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) ), and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Corporation may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Corporation (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Corporation shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth~~ the shares of ~~a Preferred Share~~ Common Stock shall ~~be deemed to~~ be the current market price per share of Common ~~Share~~ Stock (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ current market price per share of ~~a Preferred Share~~ Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the ~~Company~~ Corporation shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same ~~rights~~preferences, ~~privileges~~ limitations and ~~preferences~~ relative rights as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock ")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or other capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid by delivery of consideration part or all of which ~~may~~ shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of ~~Directors of the Company~~Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the ~~Rights Agent and the~~ holders of the Rights. Shares of Preferred ~~Shares~~ Stock and equivalent preferred stock owned by or held for the account of the ~~Company~~ Corporation shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the ~~Company~~ Corporation shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend ~~out~~ of the ~~earnings or retained earnings~~ Corporation in compliance with Section 55-6-40 of the ~~Company~~North Carolina Business Corporation Act), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of ~~Directors of the Company~~Directors, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be binding on the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or other capital stock of the Company issuable upon exercise of one Right. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “current market price per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the current market price per share of a Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing~~ case, the current market price ~~so used~~ shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (~~“Nasdaq”)~~"NASDAQ") or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights AgentDirectors. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common ~~Shares are~~ Stock is not publicly held or not so listed or traded, “current market price per share ~~market price”~~ shall mean the ~~fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.~~f

Appears in 2 contracts

Sources: Rights Agreement (Culp Inc), Rights Agreement (Culp Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the PAGE outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24 of this Agreement, in the event that any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date,~~ Person shall become an Acquiring Person, unless the event causing ~~such Person~~ the 15% threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is a Permitted Offer, then, promptly following the first occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~ten-~~hundredths~~ thousandths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share as shall equal~~ Common Stock of the Company that equals the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one ~~one~~ten-~~hundredths~~ thousandths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for PAGE purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1l) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1l) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights PAGE has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share~~ "common stock equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be ~~binding on the Rights Agent and the holders~~ conclusive for all purposes. Shares of ~~the Rights.~~ Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.. PAGE (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock on such record date. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current market price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the current market price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to the expiration of ~~30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any requisite thirty (30) Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. ten (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.10) PAGE

Appears in 2 contracts

Sources: Rights Agreement (Thermo Electron Corp), Rights Agreement (Thermo Electron Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event that the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Series B Shares payable in ~~Preferred~~ Series B Shares, (B) subdivide the outstanding ~~Preferred~~ Series B Shares, (C) combine the outstanding ~~Preferred~~ Series B Shares into a smaller number of ~~shares,~~ Series B Shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Series B Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be, which~~stock that, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Series B Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification~~. If an~~ ; provided however, that in no event ~~occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof,~~ shall the ~~adjustment provided for in this Section 11(a)(i) shall~~ consideration to be ~~in addition to, and shall~~ paid upon the exercise of one Right be ~~made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof~~less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event that any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, ~~shall~~shall become the Beneficial Owner of 15% or more of the Common Shares then outstanding, at other than pursuant to (i) any ~~time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a~~ transaction set forth in Section 13(a) hereof or (ii) any transaction that, pursuant to the provisos of Section 1(a) hereof~~. Promptly following the first occurrence of a Section 11(a)(ii) Event~~, does not cause such Person to be or become an Acquiring Person, then proper provision shall be made so that each holder of a ~~Right (~~Right, except as provided below and in Section 7(e) hereof) , shall thereafter have ~~the~~ a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number of one one-hundredths of a Preferred Share covered by each Right immediately prior~~ Series B Shares, and subject to the provisions of Section ~~11(a)(ii~~11(a)(iii) ~~event~~below, such number of ~~one one-hundredths of a Preferred Share~~ Common Shares as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a ~~Preferred~~ Series B Share for which a Right was exercisable immediately prior to the first occurrence of a an event set forth in Section 11(a)(ii) ~~Event~~above, and ~~(y)~~ dividing that product (which, following such first occurrence, shall ~~thereafter~~ be referred to as the “"Purchase Price~~” for each Right and~~ " for all purposes of this Agreement) by (y) fifty percent (50% %) of the current per share market price of the Common Shares (determined pursuant to Section 11(d) hereof~~) per Common Share~~ ), but not less than the par value thereof, on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that (x) the ~~number~~ total of ~~Preferred~~ the Common Shares ~~which~~ that are ~~authorized by the Company’s Articles of Incorporation~~ issued but not outstanding or and authorized but unissued (excluding Common Shares reserved for issuance ~~for purposes~~ pursuant to the specific terms of any indenture, option plan or other ~~than upon exercise of the Rights are~~ agreement) is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof or (y) the ~~foregoing subparagraph (ii~~total number of Common Shares available for exercise of the Rights in accordance with Section 11(a)(ii) hereof is sufficient to permit the exercise in full of ~~this~~ the Rights in accordance with Section ~~11(a),~~ 11(a)(ii) but the Board determines that such exercise of the Rights will not afford adequate protection to the shareholders of the Company and that shareholders should be given an option to acquire a substitute for the Adjustment Shares, and subject to such limitations as are necessary to prevent a default under any agreement for money borrowed to which the Company is a party and to comply with applicable law, then the Board shall: (A) determine the excess of (1) the ~~value~~ value, based upon the current per share market price of the Common Shares (determined pursuant to Section 11(d) hereof), of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread~~”),~~ ") and (B) with respect to each Right, make adequate provision to substitute ~~for~~ for, or provide an election to acquire in lieu of, the Adjustment Shares, upon payment of the applicable Purchase Price (which term shall include any reduced Purchase Price, ) any combination of the following having an aggregate value equal to the Current Value (such aggregate value to be determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board): (1~~) cash, (2~~) a reduction in the Purchase Price, (32) Common Shares or and/or other equity securities of the Company (including, without limitation, ~~preferred shares,~~ shares or units of shares of any series of preferred ~~shares~~stock, ~~which~~ including Series B Shares that the Board ~~of Directors of the Company~~ has deemed to have the same value ~~as one one-hundredth~~ of ~~a Preferred Share~~ Common Stock (such shares or units of share of preferred ~~shares, “preferred share~~ stock hereinafter referred to as "Common Share equivalents”")), ) and/or (43) debt securities of the ~~Company, (5)~~ Company and/or cash and other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the ~~later of (x) the~~ first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)Triggering Event, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which ~~shares~~ securities and/or cash ~~have an~~ in the aggregate ~~value~~ are equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days following the first occurrence of a Triggering Event, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action needs to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current per share market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) of the Common Shares on the ~~Section 11(a)(ii) Trigger Date and~~ date of the ~~value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth~~ first occurrence of a ~~Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii)~~ Triggering Event. The provisions of this Section ~~11(a), the Company may with respect~~ 11(a)(iii) shall apply only to ~~each Right, if a majority of members of the Board of Directors determine that such action is in the best interests~~ Common Shares of the Company and shall not ~~contrary~~ apply to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of ~~the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5)~~ any other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the CompanyPerson. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred~~ Series B Shares entitling them ~~to subscribe for or purchase~~ (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) ~~Preferred~~ to subscribe for or purchase Series B Shares (or shares having the same rights, privileges and preferences as the ~~Preferred~~ Series B Shares (“"equivalent preferred shares”")) or securities convertible into ~~Preferred~~ Series B Shares or equivalent preferred shares at a price per ~~Preferred~~ Series B Share or ~~per share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into ~~Preferred Share~~ Series B Shares or equivalent preferred ~~share~~shares) less than the current per share market price of the Series B Shares (as ~~determined pursuant to~~ defined in Section ~~11(d)(ii~~11(d) hereof) ~~per share of Preferred Shares~~ on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred~~ Series B Shares outstanding on such record ~~date,~~ date plus the number of ~~Preferred~~ Series B Shares ~~which~~ that the aggregate offering price of the total number of ~~Preferred~~ Series B Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market ~~price,~~ price and the denominator of which shall be the number of ~~Preferred~~ Series B Shares outstanding on such record ~~date,~~ date plus the number of additional ~~Preferred~~ Series B Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid ~~by delivery of~~ in a consideration part or all of which ~~may~~ shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the ~~Rights Agent and the~~ holders of the Rights. ~~Preferred~~ Series B Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such ~~adjustment~~ adjustments shall be made successively whenever such a record date is fixed, ; and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a the distribution to all holders of ~~Preferred~~ the Series B Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of ~~evidences of indebtedness~~any debt securities, cash or assets (other than a regular quarterly cash dividend ~~out of the earnings~~ or ~~retained earnings of the Company), assets (other than~~ a dividend payable in ~~Preferred Shares, but including any dividend payable in shares other than Preferred~~ Series B Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Series B Shares (as ~~determined pursuant to~~ defined in Section 11(d) hereof) ~~per share of Preferred Shares~~ on such record date, less the fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and binding on the holders of Rights) of the portion of the ~~cash,~~ assets or ~~evidences of indebtedness~~ debt securities so to be distributed or of such subscription rights or warrants applicable to ~~a share of Preferred~~ one Series B Share and the denominator of which shall be such current per share market price of the Series B Shares (as determined pursuant to Section 11(d) hereof~~) per share of Preferred Shares~~). Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price ~~which~~ that would ~~have been~~ then be in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “"current per share market price” " of the Common Shares on any date shall be deemed to be the lesser of (x) the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 consecutive Trading Days immediately prior to such date or (y) the average of the daily closing prices per Common Share for the 30 consecutive Trading Days immediately following such date; provided, however, that in the event that the current per share market price of a the Common ~~Share~~ Shares is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.period

Appears in 2 contracts

Sources: Rights Agreement (Loehmanns Inc), Rights Agreement (Loehmanns Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the Continuing Directors, after receiving advice from one or more nationally recognized investment banking firms, to be in the best interests of the Company and its shareholders (a "Qualifying Offer"), after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.in

Appears in 2 contracts

Sources: Rights Agreement (Philadelphia Suburban Corp), Rights Agreement (Philadelphia Suburban Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Related Person of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm’s-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company’s Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Related Person), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company’s Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company’s (or its Subsidiaries’) past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person, alone or together with its ~~Affiliates and Associates~~Related Persons, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the members of the Board of Directors, after taking into consideration all factors that such members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction ~~set forth in~~ or series of transactions involving the Company or any of its Subsidiaries, other than a Section ~~13(a~~13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) ~~hereof. Promptly~~ that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person or any Related Person of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s Articles of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ~~(2)~~ the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of in office at the ~~Company~~ time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, hereinafter referred to as “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of in office at the ~~Company based upon~~ time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to and not including such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “current market price” per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following and not including such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.iss

Appears in 2 contracts

Sources: Rights Agreement (RCM Technologies Inc), Rights Agreement (RCM Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in shares of Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any ~~shares~~ of its capital ~~stock~~ shares in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing ~~such Person~~ the 20% threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of the Person making such tender or exchange offer, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to shareholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of the Company and its shareholders, then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per ~~Common Share~~ common shares on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares which are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company ~~shall:~~ shall (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred shares, such as the Preferred Shares, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth of a Preferred Share~~ Common Shares (such shares of preferred ~~shares, “preferred share equivalents”~~shares being referred to as "Common Shares Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Shares on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Shares Equivalent shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or Market Price per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on ~~any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to~~ such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 2 contracts

Sources: Rights Agreement (Recoton Corp), Rights Agreement (Recoton Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of ~~this~~ the Original Rights Agreement (A) declare a dividend on any series of the Preferred Shares payable in Preferred ~~Shares~~Shares or other capital stock, (B) subdivide any series of the outstanding Preferred Shares, (C) combine any series of the outstanding Preferred Shares into a smaller number of ~~shares,~~ Preferred Shares or (D) issue any shares of its capital stock in a reclassification of any series of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii~~In the event (A) ~~Event shall be deemed to occur in the event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person~~, alone or together with its Affiliates and Associates, shall~~, at any time after the date of the Original Rights ~~Dividend Declaration Date~~Agreement, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be the continuing or surviving corporation of such merger or combination and all the Common Shares of the Company shall remain outstanding and not changed into or exchanged for stock or other securities of any other Person or the Company or cash or any other property, (2) shall, in one or more transactions, transfer any assets to the Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class or series of capital stock of the Company or any of its Subsidiaries or for securities exercisable for or convertible into shares of any class or series of capital stock of the Company or any of its Subsidiaries or otherwise obtain from the Company or any of its Subsidiaries, with or without consideration, any additional shares of any class or series of capital stock of the Company or any of its Subsidiaries or securities exercisable for or convertible into shares of any class or series of capital stock of the Company or any of its Subsidiaries (other than as part of a pro rata distribution to all holders of such shares of any class or series of capital stock of the Company or any of its Subsidiaries), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose (in one or more transactions), to, from, with or of, as the case may be, the Company or any of its Subsidiaries, assets (including securities) on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party as determined in good faith by the Board of Directors of the Company (other than pursuant to a transaction set forth in Section 13(a) hereof), (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose (in one or more transactions), to, from, with or of, as the case may be, the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate) assets having an aggregate fair market value of more than $2 million (other than pursuant to a transaction set forth in Section 13(a) hereof), (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any wholly-owned Subsidiary of the Company or any employee benefit plan of the Company or any Subsidiary of the Company, or any Person holding Common Shares for or pursuant to the terms of any such plan) shall become ~~an Acquiring Person,~~ the Beneficial Owner of Common Shares representing 20% or more of the total Voting Rights of all the Common Shares of the Company then outstanding unless the event causing the 20% threshold to be crossed (1) is a recalculation of the voting power of any series of Common Shares made in accordance with the Articles of Restatement; provided, however, that the exception provided by this clause (1) shall no longer apply from and after the first date upon which (i) such ~~Person to become an Acquiring Person~~ Person, or any Affiliate or Associate of such Person, since the date of such recalculation of voting power, shall have acquired Beneficial Ownership of any Common Shares and (ii) such Person, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of Common Shares representing 20% or more of the total Voting Rights of all the Common Shares then outstanding, (2) is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or (3) is an acquisition of Common Shares pursuant to a tender offer made in the manner prescribed by Section 14(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that (a) such tender offer shall provide for the acquisition of all of the outstanding shares of Circuit City Stock and CarMax Stock held by any Person other than such Acquiring Person and its Associates or Affiliates for cash and (b) the price and other terms of such tender offer are determined by the Board of Directors, after receiving advice from one or more investment banking firms, to be (x) fair to shareholders (taking into account all factors which such members of the Board deem relevant including, without limitation, values indicated in the light of long-term prospects or business plans or aggregate prices or values which could reasonably be achieved if part or all of the Company or its assets were distributed or sold on an orderly basis designed to realize maximum long-term value) and (y) otherwise in the best interests of the Company and its shareholders, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries (whether or not with or into or otherwise involving an Acquiring Person), other than a transaction or transactions to which the provisions of Section 13(a) apply, which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class or series of equity securities or of securities exercisable for or convertible into securities of the Company or any of its Subsidiaries which is directly or indirectly owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, promptly following the ~~first~~ occurrence of a any event described in Section ~~11(a)(ii~~11(a)(ii)(A), (B) ~~Event~~or (C) hereof, proper provision shall be made so that each holder of a ~~Right (~~Right, except as provided below and in Section 7(e~~) hereof)~~ ), shall thereafter have the right to receive, upon exercise thereof at the then current Purchase ~~Price~~ Price, in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~four-hundredths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ shares of Circuit City Stock (in the case of a ~~Preferred Share~~ Circuit City Right) or CarMax Stock (in the case of a CarMax Right) as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one ~~one~~four-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and ~~(y)~~ dividing that product (~~which~~which product, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by (y) 50% of the ~~current market price~~ Current Market Price per share of the applicable series of Common Shares (determined pursuant to Section 11(d)) ~~hereof) per Common Share~~ on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided, that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the aggregate number of ~~Preferred Shares which are~~ shares of Circuit City Stock or CarMax Stock authorized by the Company’s 's Articles of ~~Incorporation~~ Restatement but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Circuit City Rights or CarMax Rights, as the case may be, in accordance with the foregoing subparagraph (ii) of this Section 11(a), or if any necessary regulatory approval for such issuance has not been obtained by the Company, the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a each such Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each such Right, make adequate provision to substitute for the Adjustment Shares, upon ~~payment~~ exercise of ~~the applicable Purchase Price~~such Rights, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, ~~preferred shares,~~ shares or units of shares of preferred ~~shares,~~ stock which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Circuit City Stock or CarMax Stock, as applicable (such shares or units of shares of preferred ~~shares~~stock are herein called "common stock equivalents"), ~~“preferred share equivalents”))~~except to the extent that the Company has not obtained any necessary regulatory approval for such issuance, (4) debt securities of the Company, except to the extent that the Company has not obtained any necessary regulatory approval for such issuance, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be ~~obligated~~ obligated, subject to Section 7(e), to deliver, upon the surrender for exercise of a each such Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) ), except to the extent that the Company has not obtained any necessary regulatory approval for such issuance, and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of such Rights or that any necessary regulatory approval for such issuance will be obtained, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares or take action to obtain such regulatory approval (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Circuit City Rights or CarMax Rights, as the case may be, and (y) may suspend the exercisability of such Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to take any action to obtain any required regulatory approval and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of such Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall be ~~deemed to be~~ the ~~current market price per Common Share~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share~~ "common stock equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of any series of Preferred Shares entitling them ~~to subscribe for or purchase~~ (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) to subscribe for or purchase such Preferred Shares (or shares having the same rights, privileges and preferences as ~~the~~ such Preferred Shares (“"equivalent preferred shares”)") or securities convertible into such Preferred Shares or equivalent preferred shares at a price per Preferred Share or ~~per share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into such Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of such Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of such Preferred Shares outstanding on such record ~~date,~~ date plus the number of such Preferred Shares which the aggregate offering price of the total number of such Preferred Shares ~~and/or~~ or equivalent preferred shares or both so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price,~~ Current Market Price and the denominator of which shall be the number of such Preferred Shares outstanding on such record ~~date,~~ date plus the number of additional such Preferred Shares ~~and/or~~ or equivalent preferred shares or both to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid ~~by delivery of~~ in a consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.f

Appears in 2 contracts

Sources: Rights Agreement (Circuit City Stores Inc), Rights Agreement (Circuit City Stores Inc)

Appears in 2 contracts

Sources: Rights Agreement (Labone Inc/), Rights Agreement (Labone Inc/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Common Shares payable in ~~Preferred~~ Common Shares, (B) subdivide the outstanding ~~Preferred~~ Common Shares, (C) combine the outstanding ~~Preferred~~ Common Shares into a smaller number of ~~shares,~~ Common Shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Common Shares (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred each Common Share ~~transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of~~ outstanding following such dividend, subdivision, combination or ~~reclassification~~reclassification shall continue to have a Right associated therewith and the Purchase Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Purchase Price immediately prior to such event by a fraction the numerator of which shall be the total number of Common Shares outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of Common Shares outstanding immediately following the occurrence of such event; provided, however, that in no event shall the consideration to be paid upon the excise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon exercise of one Right. The adjustment provided for in the preceding sentence, shall be made successively whenever such a dividend is declared or paid or such a subdivision, combination or consolidation is effected. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall, for a period of 60 days after the later of the occurrence of any such event or the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement, such number of Common Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of Common Shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and dividing that product by (y) 50% of the then current per share market price of the Corporation's Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as the "Adjustment Shares"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii); (iii) In the event that there shall not be sufficient treasury shares or authorized but unissued (and unreserved) Common Shares to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement to the extent necessary and permitted by applicable law, each Right shall thereafter ~~have~~ represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) ~~multiplying the then-current Purchase Price by the then-~~a number of ~~one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior~~ (or fractions of) Common Shares (up to the ~~first occurrence~~ maximum number of ~~a Section 11(a)(ii~~Common Shares which may permissibly be issued) ~~Event,~~ and (y) ~~dividing that product (which~~a number of, ~~following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes~~ or fractions of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the ~~Company~~ Corporation (~~including~~or, ~~without limitation~~in the discretion of the Board of Directors, ~~preferred shares, or units of preferred shares,~~ debt) which the Board of Directors of the ~~Company~~ Corporation has ~~deemed~~ determined to have the same aggregate current market value (determined pursuant to Section 11(d)(i) and (ii) hereof, to the extent applicable) as one ~~one-hundredth of a Preferred~~ Common Share (such ~~preferred shares~~number of, ~~“preferred share equivalents”)~~or fractions of, debt, or other equity securities or debt of the Corporation being referred to as a "capital stock equivalent"), ~~(4) debt securities of~~ equal in the ~~Company, (5) other assets, or (6) any combination of the foregoing, having an~~ aggregate ~~value equal~~ to the ~~Current Value, where such aggregate value has been determined by the Board~~ number of ~~Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company~~Adjustment Shares; provided, however, if sufficient Common Shares and/or capital stock equivalents are unavailable, then the ~~Company~~ Corporation shall, to the extent permitted by applicable law, take all such action as may be necessary to authorize additional Common Shares or capital stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Corporation is unable to cause sufficient Common Shares and/or capital stock equivalents to be available for issuance upon exercise in full of the Rights, then each Right shall ~~not have made adequate provision~~ thereafter represent be right to ~~deliver value pursuant~~ receive the Adjusted Number of Shares upon exercise at the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the. term "Adjusted Number of Shares" shall be equal to ~~clause~~ that number of (Bor fractions of) ~~above within thirty~~ Common Shares (30and/or capital stock equivalents) ~~days following~~ equal to the ~~later~~ product of (x) the ~~first occurrence~~ number of ~~a Section 11(a)(ii) Event~~ Adjustment Shares and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall be~~ is the number of ~~Preferred~~ Common Shares ~~outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price~~ (and/or capital stock equivalents) available for issuance upon exercise of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, Rights and the denominator of which ~~shall be~~ is the aggregate number of ~~Preferred~~ Adjustment Shares ~~outstanding on such record date, plus the~~ otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of ~~additional Preferred~~ Common Shares ~~and/or equivalent preferred shares~~ available) (such fraction being referred to ~~be offered for subscription or purchase~~ as the (~~or into which the convertible securities so to be offered are initially convertible~~"Proration Factor"). ~~In case such subscription price may be paid by delivery~~ The "Adjusted Purchase Price" shall mean the product of ~~consideration part or all of which may be in a form other than cash,~~ the ~~value of such consideration shall be as determined in good faith by~~ Purchase Price and the Proration Factor. The Board of Directors ~~of the Company~~may, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company but shall not be ~~deemed outstanding for~~ required to, establish procedures to allocate the ~~purpose~~ right to receive Common Shares and capital stock equivalents upon exercise of ~~any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in~~ the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all Rights among holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixedRights. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 2 contracts

Sources: Rights Agreement (Vion Pharmaceuticals Inc), Rights Agreement (Vion Pharmaceuticals Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock or other capital stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any ~~shares~~ share of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in ~~this~~ Section ~~11(a~~11(a)(ii) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or ~~reclassification~~re- classification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon ~~payment~~ pay- ment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock (or other capital stock, as the case may be) transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior ~~to,~~ to any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan or employee stock plan of the Company or of any Subsidiary of the Company, any dividend reinvestment plan of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date hereof, ~~become~~ becomes an Acquiring Person, unless the event causing such ~~Person~~ threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is an acquisition of Common Stock pursuant to a tender offer or exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to stockholders (taking into account all factors which such members of the Board deem relevant including, without limitation, the long-term prospects and value of the Company and the prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of (1) the Company and its stockholders (including the possibility that these interests may best be served by the continued independence of the Company), (2) the Company's employees, suppliers, creditors, customers and (3) the community in which the Company operates, then, promptly following the first occurrence of a the event described in Section 11(a)(ii) ~~Event~~hereof, proper provision shall be made so that each holder of a Right (except as provided ~~below~~ in Section 11(a)(iii), and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock Fractions, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred ~~Share~~ Stock Fractions for which a Right was exercisable by such holder immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (~~which~~such product, following such first occurrence, shall thereafter be referred to as the “Purchase ~~Price”~~ Price for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of ~~shares,~~ shares of Common Stock is herein called the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized ~~by the Company’s Articles of Incorporation~~ but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not ~~sufficient~~ sufficient, or there shall not have been received regulatory approvals necessary, in each case to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, preferred shares, or ~~units of preferred shares~~Preferred Stock Fractions), which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such ~~preferred~~ shares, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the ~~later~~ first occurrence of (x) ~~the first occurrence of~~ a Section 11(a)(ii) Event ~~and~~ or (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended by resolution of the Board of Directors of the Company to the extent necessary, but not more than ninety (90) days following the first occurrence of a Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to take any action to obtain any required regulatory approval and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ common stock equivalents shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) ~~In lieu~~ If the rules of ~~issuing Preferred Shares~~ the national securities exchange, registered as such pursuant to Section 6 of the Exchange Act, or of the national securities association, registered as such pursuant to Section 15A of the Exchange Act, on which the shares of Common Stock are principally traded would prohibit such exchange or association from listing or continuing to list, or from authorizing for or continuing quotation and/or transaction reporting through an inter-dealer quotation system, the shares of Common Stock or other equity securities of the Company if the Rights were to be exercised for shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a)) because such issuance would nullify, restrict or disparately reduce the per share voting rights of holders of shares of Common Stock or for any other reason, the Company ~~may~~ shall: (A) determine the Spread and (B) with respect to each Right~~, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights~~, make adequate provision to substitute for the Adjustment Shares, ~~(x)~~ upon ~~the surrender for exercise of a Right and~~ payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) ~~a reduction in Purchase Price, (3) Common Shares, or other~~ equity securities of the ~~Company (including~~ Company, including, without ~~limitation preferred~~ limitation, "common stock equivalents," other than securities which would have the effect of nullifying, restricting or disparately reducing the per share ~~equivalents)~~voting rights of holders of shares of Common Stock or otherwise cause the prohibition described above, (43) debt securities of the Company, (54) other ~~assets~~ assets, or (65) any combination of the ~~foregoing~~ foregoing, having an aggregate value equal to the Current ~~Value~~ Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisers~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company or shall not have made adequate provision to deliver value pursuant to clause (yB) above within thirty (30) days following the Section 11(a)(ii) Trigger Date, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, cash having an aggregate value equal to the ~~Spread where~~ Spread. To the extent that the Company determines that an action needs to be taken pursuant to the first sentence of this Section 11(a)(iv), the Company (x) shall provide, subject to Section 7(e), that such ~~aggregate~~ action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights, but not longer than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been ~~determined by~~ temporarily suspended, as well as a public announcement at such time as the ~~Board~~ suspension is no longer in effect. For purposes of ~~Directors~~ this Section 11(a)(iv), the value of the ~~Company based upon~~ Common Stock shall be the ~~advice~~ current market price (as determined pursuant to Section 11(d) hereof) per share of ~~one or more investment or financial advisors selected by~~ Common Stock on the ~~Board~~ Section 11(a)(ii) Trigger Date and the value of ~~Directors of~~ any "common stock equivalent" shall be deemed to have the ~~Company~~same value as the Common Stock on such date. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock, (or shares having the same rights, ~~privileges~~ privi- leges and preferences as the Preferred ~~Shares~~ Stock (“"equivalent ~~preferred shares”~~Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent ~~preferred shares~~ Preferred Stock at a price per ~~Preferred Share or per~~ share of Preferred Stock or equivalent ~~preferred shares~~ Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent ~~preferred share~~Preferred Stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent ~~preferred shares~~ Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market ~~price,~~ price and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent ~~preferred shares~~ Preferred Stock to be offered for subscription or purchase (or ~~into~~ onto which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, ; and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend paid out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ capital stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current market price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.s

Appears in 2 contracts

Sources: Rights Agreement (Nui Corp), Rights Agreement (Nui Corp)

Appears in 2 contracts

Sources: Rights Agreement (Cooper Industries LTD), Rights Agreement (Cooper Industries LTD)

Appears in 2 contracts

Sources: Rights Agreement (Instinet Group Inc), Rights Agreement (Instinet Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all shareholders, as determined by at least a majority of the Continuing Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Amended and Restated Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If ~~on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by~~ the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined determine in good faith ~~by the Board of Directors~~ that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the ~~Company~~Rights, ~~whose determination~~ the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall ~~be described in a statement filed with~~ provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights ~~Agent.~~until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value

Appears in 2 contracts

Sources: Rights Agreement (Safeskin Corp), Rights Agreement (Safeskin Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares or other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares,~~ Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon exercise of one Right. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) ~~shall thereafter~~ shall, for a period of 60 days after the later of (i) the occurrence of any such event or (ii) the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have ~~the~~ a right to receive, upon exercise thereof at a price equal to the then current Purchase ~~Price~~ Price, in accordance with the terms of this Agreement, ~~in lieu of~~ such number of Common Shares (or, in the discretion of the Board of Directors, one one-hundredths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii~~Share) ~~event, such number of one one-hundredths of a Preferred Share~~ as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event,~~ Event and (y) dividing that product ~~(which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement)~~ by 50% of the then current per share market price of the Corporation’s Common Shares (determined pursuant to Section 11(d) hereof) ~~per Common Share~~ on the date of such first occurrence (such number of ~~shares,~~ shares being referred to as the “Adjustment Shares”); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that ~~the number of Preferred~~ there shall not be sufficient treasury shares or authorized but unissued (and unreserved) Common Shares ~~which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient~~ to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable (and the Board has determined to make the Rights exercisable into fractions of a Preferred Share), notwithstanding any other provision of this ~~Section 11(a)~~Agreement, to the ~~Company shall:~~ extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, (Ax) ~~determine the excess~~ a number of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3or fractions of) Common Shares ~~or other equity securities~~ (up to the maximum number of ~~the Company~~ Common Shares which may permissibly be issued) and (~~including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as~~ y) one one-hundredth of a Preferred Share or a number of (~~such preferred shares, “preferred share equivalents”)), (4~~or fractions of) ~~debt~~ other equity securities of the ~~Company~~Corporation (or, ~~(5) other assets, or (6) any combination~~ in the discretion of the ~~foregoing~~Board of Directors, ~~having an aggregate value equal to the Current Value, where such aggregate value has been determined by~~ debt) which the Board of Directors of the ~~Company based upon~~ Corporation has determined to have the ~~advice~~ same aggregate current market value (determined pursuant to Sections 11(d)(i) and (ii) hereof, to the extent applicable) as one Common Share (such number of ~~one~~ (or ~~more investment~~ fractions of) Preferred Shares (or ~~financial advisors selected by the Board of Directors~~ other equity securities or debt of the ~~Company~~Corporation) being referred to as a “capital stock equivalent”), equal in the aggregate to the number of Adjustment Shares; provided, however, if sufficient Common Shares and/or capital stock equivalents are unavailable, then the ~~Company~~ Corporation shall, to the extent permitted by applicable law, take all such action as may be necessary to authorize additional Common Shares or capital stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Corporation is unable to cause sufficient Common Shares and/or capital stock equivalents to be available for issuance upon exercise in full of the Rights, then each Right shall ~~not have made adequate provision~~ thereafter represent the right to ~~deliver value pursuant~~ receive the Adjusted Number of Shares upon exercise at the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term “Adjusted Number of Shares” shall be equal to ~~clause~~ that number of (Bor fractions of) ~~above within thirty~~ Common Shares (30and/or capital stock equivalents) ~~days following~~ equal to the ~~later~~ product of (x) the ~~first occurrence~~ number of ~~a Section 11(a)(ii) Event~~ Adjustment Shares and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall be~~ is the number of ~~Preferred~~ Common Shares ~~outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price~~ (and/or capital stock equivalents) available for issuance upon exercise of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, Rights and the denominator of which ~~shall be~~ is the aggregate number of ~~Preferred~~ Adjustment Shares ~~outstanding on such record date, plus the~~ otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on available) (such ~~date~~ fraction being referred to as ~~determined in good faith by~~ the ~~Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent~~“Proration Factor”). The ~~term~~ “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market priceAdjusted Purchase Price” shall mean the ~~fair value per share as determined in good faith by~~ product of the Purchase Price and the Proration Factor. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Common Shares and capital stock equivalents upon exercise of the ~~Company, whose determination shall be described in a statement filed with the~~ Rights ~~Agent~~among holders of Rights.

Appears in 2 contracts

Sources: Rights Agreement (Oneok Inc /New/), Rights Agreement (Oneok Inc /New/)

Appears in 2 contracts

Sources: Rights Agreement (Penn National Gaming Inc), Rights Agreement (Penn National Gaming Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a ~~dividend~~ distribution on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares,~~ shares or (D) issue any other shares of ~~its capital stock~~ beneficial interest in the Company in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving ~~corporation~~entity), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such ~~dividend~~ distribution or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or ~~capital stock~~the number and kind of shares of beneficial interest in the Company issuable on such date, as the case may be~~, issuable on such date~~, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the aggregate adjusted Purchase Price then in ~~effect~~effect necessary to exercise a Right in full, the aggregate number and kind of Preferred Shares or ~~capital stock~~the number and kind of shares of beneficial interest in the Company, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share (or Common Share and/or other securities, as the case may be) transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such ~~dividend~~distribution, subdivision, ~~combination~~ combination, or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event that any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan or any Excluded Holder), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly following~~ , or is an acquisition of Common Shares pursuant to a cash tender offer made pursuant to Section 14(d) of the ~~first occurrence~~ Exchange Act for all outstanding Common Shares (other than Common Shares beneficially owned by the Person making the offer or by its Affiliates or Associates) at a price and on terms determined by at least two-thirds of the Trustees, after receiving advice from one or more investment banking firms, to be (a) a ~~Section 11(a)(ii~~price which is fair to shareholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) ~~Event~~and (b) otherwise in the best interests of the Company and its shareholders, proper provision shall be made so that promptly following the Redemption Period (as defined in Section 23(a)), each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at and payment of an amount equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~ten-~~hundredths~~ thousandths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one ~~one~~ten-~~hundredths~~ thousandths of a Preferred Share for which a Right was or would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this ~~Agreement~~Agreement except to the extent set forth in Section 13 hereof) by 50% of the current market price per Common Share (determined pursuant to Section 11(d) hereof) ~~per Common Share~~ on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) The Company may at its option substitute for a Common Share issuable upon the exercise of Rights in accordance with the foregoing subparagraph (ii) such number or fractions of Preferred Shares having an aggregate market value equal to the current per share market price of a Common Share. In the event that the number of ~~Preferred~~ Common Shares which ~~are~~ is authorized by the ~~Company’s Articles~~ Declaration of ~~Incorporation~~ Trust but not ~~outstanding~~ outstanding, or reserved for issuance for purposes other than upon exercise of the ~~Rights are~~ Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii~~) of this Section 11(a~~), the Board shall, to the extent permitted by applicable law and by material agreements then in effect to which the Company ~~shall:~~ is a party, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for some or all of the Adjustment Shares, upon exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, ~~preferred shares,~~ Preferred Shares or units of ~~preferred shares,~~ Preferred Shares which the Board ~~of Directors of the Company~~ has deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ Common Shares) (such ~~preferred shares, “preferred~~ shares of beneficial interest being herein called "common share equivalents”)"), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ an investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which ~~shares~~ Common Shares and/or cash have an aggregate value equal to the Spread. If, upon the occurrence of a Section 11(a)(ii) Event, the Board shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, then if the Board so elects, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that action is to be taken pursuant to the preceding provisions of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of~~ a ~~Preferred~~ Common Share on such date~~. (iv) In lieu of issuing Preferred~~ . The Board may, but shall not be required to, establish procedures to allocate the right to receive Common Shares ~~in accordance with subparagraph (ii) of this Section 11(a),~~ upon the ~~Company may with respect to each Right, if a majority of members~~ exercise of the ~~Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the~~ Rights among holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price Rights pursuant to this ~~subparagraph (iv~~Section 11(a)(iii)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them ~~to subscribe for or purchase~~ (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”)") or securities convertible into Preferred Shares ~~or equivalent preferred shares~~ at a price per Preferred Share or per ~~share of~~ "equivalent preferred ~~shares~~ share" (or having a conversion price per ~~share~~Preferred Share, if a security convertible into Preferred ~~Share or equivalent preferred share~~Shares) less than the current per share market price of the Preferred Shares (as ~~determined pursuant to~~ defined in Section ~~11(d)(ii~~11(d)) ~~hereof) per share of Preferred Shares~~ on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent ~~preferred shares~~ Preferred Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent ~~preferred shares~~ Preferred Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid ~~by delivery of~~ in a consideration part or all of which ~~may~~ shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be ~~binding on the Rights Agent and the holders of the Rights~~conclusive for all purposes. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, ; and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing ~~corporation~~or surviving entity) of evidences of indebtedness, cash (other than a regular quarterly cash ~~dividend~~ distribution out of the ~~earnings or retained~~ earnings of the Company), assets (other than a ~~dividend~~ distribution payable in Preferred Shares, but including any ~~dividend~~ distribution payable in shares of beneficial interest other than Preferred Shares) ), or subscription rights or warrants (excluding those referred to in Section 11(b~~) hereof~~)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price of the Preferred Shares (as ~~determined pursuant to~~ defined in Section 11(d)) ~~hereof) per share of Preferred Shares~~ on such record date, less the fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current per share market price ~~(as determined pursuant to Section 11(d) hereof) per share~~ of the Preferred Shares. Such ~~adjustments~~ adjustment shall be made successively whenever such a ~~record-~~record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would ~~have been~~ then be in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “"current ~~per share~~ market price” " of the Common Shares on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common Shares for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the current market price of a the Common ~~Share~~ Shares is determined during a period following the announcement by the ~~Company~~ issuer of such Common Shares of (Ai) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Shares payable in such Common Shares or securities convertible into such Common ~~Shares~~Shares (other than the Rights), or (Bii) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be appropriately adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotations System (“"Nasdaq”)") or such other system then in use, or, if on any such date the Common Shares are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Shares selected by the ~~Board of Directors of the Company~~Board. If on any such date no ~~market-~~market maker is making a market in the Common Shares, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board ~~of Directors of the Company~~ shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the transaction of ~~business~~ business, or, if the Common Shares are not listed or admitted to trading on any national securities exchange, ~~a Business~~ the term "Trading Day~~. If Common Shares are not publicly held or so listed or traded, “current per share market price”~~ " shall mean ~~the fair value per share as determined in good faith by the Board of Directors of the Company~~a Monday, ~~whose determination shall be described in a statement filed with the Rights Agent.~~Tuesday, Wednesday, Thursday or Fri

Appears in 2 contracts

Sources: Rights Agreement (Colonial Properties Trust), Rights Agreement (Colonial Properties Trust)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred Shares~~ Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares~~Common Stock, (C) combine the outstanding ~~Preferred Shares~~ Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred Shares~~ Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares~~ shares of Common Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares~~ shares of Common Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section ~~11(a)(i~~11(a) and ~~Section 11(a)(ii) hereof~~13(a), the adjustment provided for in this Section ~~11(a)(i~~11(a) shall be in addition ~~to,~~ to and shall be made prior to, any adjustment required pursuant to Section ~~11(a)(ii~~13(a) hereof. (ii) ~~A Section 11(a)(ii~~In the event (1) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Stock of the Company shall remain outstanding and unchanged, or (2) subject to ~~occur~~ the right of redemption granted in Section 24 hereof, any Person (other than the ~~event~~ Company, any ~~Person~~Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, ~~unless the event causing such Person~~ other than pursuant to ~~become an Acquiring Person is a~~ any transaction set forth in Section 13(a) hereof~~. Promptly~~ , or pursuant to an offer for all outstanding shares of Common Stock at a price and upon such terms and conditions as a majority of the Board of Directors determines to be in the best interests of the Company and its stockholders, other than such Acquiring Person, its Affiliates and its Associates, or (B) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a transaction or transactions to which the provisions of Section 13(a) apply (whether or not with or into or otherwise involving an Acquiring Person) which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, promptly following the ~~first~~ occurrence of a Section ~~11(a)(ii~~ll(a)(ii) Event, the Company and, to the extent necessary or appropriate, the Acquiring Person and its Affiliates and Associates, shall make proper provision ~~shall be made~~ so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ that number of ~~one one-hundredths~~ shares of ~~a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Common Stock (or fraction thereof), such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock as shall equal the result obtained by multiplying (x) ~~multiplying~~ the ~~then-~~product of the then current Purchase Price divided by 50% of the ~~then-~~current market price (determined pursuant to Section ll(d) hereof) per share of Common Stock on the date of such first occurrence by (y) the then number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence Event (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the ~~Company’s Articles~~ Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section ~~11(a~~ll(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the ~~“Spread”~~"Spreads), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share "common stock equivalents”)"), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver the value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section ~~11(a)(ii~~ll(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section ~~23(a~~24(a) expires (the later of (x) and (y) being referred to herein as the “"Section ~~11(a)(ii~~ll(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of ~~a Right~~ Rights and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section ll(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section ll(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section ~~11(a)(iii~~ll(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section ~~11(d~~ll(d) hereof) per share of the Common Stock on the Section ~~11(a)(ii~~ll(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ common stock equivalents shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ Common Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) ~~Preferred Shares~~ Common Stock (or shares having the same rights, privileges and preferences as the ~~Preferred Shares~~ shares of Common Stock (~~“equivalent preferred shares”~~"Equivalent Common Stock")) or securities convertible into ~~Preferred Shares~~ Common Stock or ~~equivalent preferred shares~~ Equivalent Common Stock at a price per ~~Preferred Share~~ share of Common Stock or per share of ~~equivalent preferred shares~~ Equivalent Common Stock (or having a conversion price per share, if a security convertible into ~~Preferred Share~~ Common Stock or ~~equivalent preferred share~~Equivalent Common Stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of ~~Preferred Shares~~ Common Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of ~~Preferred Shares~~ shares of Common Stock which the aggregate offering price of the total number of ~~Preferred Shares~~ shares of Common Stock and/or ~~equivalent preferred shares~~ Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of additional ~~Preferred Shares~~ shares of Common Stock and/or ~~equivalent preferred shares~~ Equivalent Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Shares of Common Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred Shares~~ Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in ~~Preferred Shares~~Common Stock, but including any dividend payable in ~~shares~~ stock other than ~~Preferred Shares~~Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of ~~Preferred Shares~~ Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of ~~Preferred Share~~ Common Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of ~~Preferred Shares~~Common Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (id) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current market price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per share of Common Stock on any day shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the current market price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares or~~ Stock of securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading by the NASDAQ National Market System or, if the shares of Common Stock are not listed or admitted to trading on the NASDAQ National Market System, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (~~“Nasdaq”)~~NASDAQ) or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board of Directors of the Company. If on any such date no ~~market-~~market maker is making a market in the Common ~~Shares~~Stock, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the Company shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common ~~Shares are~~ Stock is not publicly held or not so listed or traded, “"current market price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the ~~Company, whose determination shall be described in a statement filed with the Rights Agent.~~

Appears in 2 contracts

Sources: Rights Agreement (Mfri Inc), Rights Agreement (Mfri Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares~~Preferred Shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a ~~consolidation~~ consolidation, merger, or ~~merger~~ statutory share exchange in which the Company is the continuing surviving or ~~surviving~~ acquiring corporation), except as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ combination, or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such ~~date~~date pursuant to the exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in ~~effect~~effect (and any applicable transfer taxes), the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be, which~~stock that, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Section 11(a)(ii) Event shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular waycombination, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 2 contracts

Sources: Share Rights Agreement (Dakota Growers Restructuring Co Inc), Rights Agreement (Dakota Growers Restructuring Co Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), then and in each such event, except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A In the event that: (A) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become an Acquiring Person, unless the event causing the Person to become an Acquiring Person is (l) a transaction set forth in Section ~~11(a)(ii~~13(a) ~~Event shall~~ hereof or (2) an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be ~~deemed~~ (a) at a price which is fair to ~~occur~~ stockholders (taking into account all factors which such members of the Board of Directors deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the ~~event~~ best interests of the Company and its stockholders (a "Qualifying Offer"); or (B) The Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, ~~shall~~has, at any time after this Agreement has been filed with the ~~Rights Dividend Declaration Date~~Securities and Exchange Commission as an exhibit to a filing under the Securities Act or Exchange Act, become ~~an Acquiring Person~~the Beneficial Owner of a number of shares of Common Stock which the Board of Directors of the Company determines to be substantial (which number of shares shall in no event represent less than l0 percent of the outstanding shares of Common Stock) and a determination by the Board of Directors of the Company, ~~unless the event causing~~ after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate and consideration of such factors as are permitted by applicable law, that (a) such Beneficial Ownership by such Person is intended to ~~become an Acquiring~~ cause the Company to repurchase the shares of Common Stock beneficially owned by such Person is or to cause pressure on the Company to take action or enter into a transaction ~~set forth~~ or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company would not be served by taking such action or entering into such transaction or series of transactions at the time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company's ability to maintain its competitive position) on the business or prospects of the Company; then, promptly following the occurrence of any event described in Section ~~13(a~~11(a)(ii)(A) ~~hereof. Promptly following the first occurrence of~~ or (B) hereof (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by ~~50%~~ 50 percent of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, as amended at the time (the "Certificate of Incorporation"), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), ; and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, : (1l) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.other

Appears in 2 contracts

Sources: Rights Agreement (Agritope Inc), Rights Agreement (Agritope Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration~~ Record Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ Fractional Shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock theretofore exercisable, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the Current Market Price used to determine the number of Adjustment Shares) (the “Current Value”) over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock, such as the Preferred Stock that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock being referred to as the “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “~~Section 11(a)(ii)~~ Flip-In Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“~~equivalent preferred shares~~Equivalent Preferred Stock”)) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per share ~~market price~~of any security (a “Security” for the purpose of ~~the Common Shares~~ this Section 11(d)(i)) of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the Common Shares~~ such Security for the 30 consecutive Trading Days immediately prior to but not including such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of a Security on any date shall be deemed to be the average of the daily Closing Prices per share of such Security for the 10 consecutive Trading Days immediately following but not including such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a ~~Common Share~~ Security is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on such Security other than a regular quarterly cash dividend or the ~~Common Shares, payable in Common Shares or securities convertible into Common Shares~~dividend of the Rights, or (B) any subdivision, combination or reclassification of ~~the Common Shares~~such Security, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Companytake into account ex-dividend trading. If ~~on any such date no market-maker~~ a Security is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or not so listed or traded, “~~current~~ Current Market Price” per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Ion Geophysical Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), then and in each such event, except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A In the event that: (A) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become an Acquiring Person, unless the event causing the Person to become an Acquiring Person is (l) a transaction set forth in Section ~~11(a)(ii~~13(a) ~~Event shall~~ hereof or (2) an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be ~~deemed~~ (a) at a price which is fair to ~~occur~~ shareholders (taking into account all factors which such members of the Board of Directors deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the ~~event~~ best interests of the Company and its shareholders (a “Qualifying Offer”); or (B) The Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, ~~shall~~has, at any time after this Agreement has been filed with the ~~Rights Dividend Declaration Date~~Securities and Exchange Commission as an exhibit to a filing under the Securities Act or Exchange Act, become ~~an Acquiring Person~~the Beneficial Owner of a number of shares of Common Stock which the Board of Directors of the Company determines to be substantial (which number of shares shall in no event represent less than l0% of the outstanding shares of Common Stock) and a determination by the Board of Directors of the Company, ~~unless the event causing~~ after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate and consideration of such factors as are permitted by applicable law, that (a) such Beneficial Ownership by such Person is intended to ~~become an Acquiring~~ cause the Company to repurchase the shares of Common Stock beneficially owned by such Person is or to cause pressure on the Company to take action or enter into a transaction ~~set forth~~ or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company would not be served by taking such action or entering into such transaction or series of transactions at the time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company’s ability to maintain its competitive position) on the business or prospects of the Company; then, promptly following the occurrence of any event described in Section ~~13(a~~11(a)(ii)(A) ~~hereof. Promptly following the first occurrence of~~ or (B) hereof (a “Section 11(a)(ii) Event”), proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s Restated Articles of ~~Incorporation~~ Incorporation, as amended at the time (the “Restated Articles of Incorporation”), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”~~) over (2) the Purchase Price (such excess, the “Spread”~~), ; and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, : (1l) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock being referred to as “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, is herein called the “Substitution Period”). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (l) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per-share or per-unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges ~~and preferences~~ as the shares of Preferred ~~Shares~~ Stock (“equivalent preferred ~~shares~~stock”)) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such ~~adjustment~~ adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ Current Market Price per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.take into

Appears in 1 contract

Sources: Rights Agreement (Key Technology Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Section 11(a)(ii) Event shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section ~~11(a)(ii~~11(a) ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “"preferred share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Preferred Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “"preferred share equivalent” " shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase Price ~~(taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “"current market price" per share ~~market price”~~ of ~~the~~ Common Shares on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common Shares for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; , provided, however, that in the event that the current market price per share of a the Common ~~Share~~ Shares is determined during a period following the announcement by the ~~Company~~ issuer of such Common Shares of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Shares payable in such Common Shares or securities convertible into such Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day period after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") or such other system then in use, or, if applicable, the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not reported by Nasdaq or such other system then in use and are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not reported by Nasdaq or such other system then in use and are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Shares selected by the Board of Directors of the Company. If on any such date no ~~market-~~market maker is making a market in the Common Shares, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the Company shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the transaction of business or, if the Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Shares are not publicly held or not so listed or traded, “"current market price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (LNB Bancorp Inc)

Appears in 1 contract

Sources: Rights Agreement (Manugistics Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all shareholders, as determined by at least a majority of the continuing Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Amended and Restated Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the ~~later of (x)~~ shall make a public announcement when the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment exercisability of the ~~Purchase Price~~Rights has been temporarily suspended, ~~Preferred Shares (to the extent available)~~ and ~~then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread~~again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Share of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Share payable in Common Shares or securities convertible into Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each ~~day~~ Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed ~~on the principal national securities exchange on which the Common Shares are listed~~ or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on ~~any national securities exchange,~~ the ~~last quoted price or, if not so quoted, the average of the high bid and low asked prices~~New York Stock Exchange, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal ~~national securities exchange on which Common Shares are listed or admitted to trading is open for the~~ consolidated transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.reporting system

Appears in 1 contract

Sources: Rights Agreement (Union Pacific Resources Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company ~~shall~~ shall, at any time after the date of this ~~Agreement~~ Agreement, (A) declare a dividend on the ~~Preferred~~ Series A Shares payable in ~~Preferred~~ Series A Shares, (B) subdivide the outstanding ~~Preferred~~ Series A Shares, (C) combine the outstanding ~~Preferred~~ Series A Shares into a smaller number of ~~shares~~Series A Shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Series A Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ combination, or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital stock~~, as the case may be~~, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Series A Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, ~~combination~~ combination, or reclassification. If an event occurs ~~which would require~~ that requires an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event that any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any entity organized, appointed, or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, ~~shall, at any time~~ shall on or after the ~~Rights Dividend Declaration Date,~~ date hereof become an Acquiring Person, unless the event causing such ~~Person~~ person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly following the first occurrence of a Section 11(a)(ii) Event~~, then, in such case, proper provision shall be made so that each holder of a ~~Right (~~Right, except as provided below and in Section 7(e) hereof) , shall thereafter have ~~the~~ a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number of one one-hundredths of a Preferred Share covered by each Right immediately prior~~ Series A Shares, and subject to the provisions of Section ~~11(a)(ii~~11(a)(iii) ~~event~~below, such number of ~~one one-hundredths~~ Class A Common Shares of the Company (if such Right is a ~~Preferred Share~~ Class A Right) or Class B Common Shares (if such Right is a Class B Right) as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a ~~Preferred~~ Series A Share for which a Right was exercisable immediately prior to the first occurrence of a an event set forth in this Section 11(a)(ii~~) Event~~), and ~~(y)~~ dividing that product (~~which~~which product, following such first occurrence, shall ~~thereafter~~ be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by (y) 50% of the current per share market price of the Common Shares (determined pursuant to Section 11(d) hereof~~) per Common Share~~ ), but not less than the par value thereof, on the date of such first occurrence (such number of shares, being referred to herein as the “Adjustment Shares”). (iii) In the event that the ~~number~~ total of ~~Preferred~~ the Common Shares ~~which~~ that are ~~authorized by the Company’s Articles of Incorporation~~ issued but not outstanding or and authorized but unissued (excluding Common Shares reserved for issuance ~~for purposes~~ pursuant to the specific terms of any indenture, option plan, or other ~~than upon exercise of the Rights are~~ agreement) is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, then the ~~foregoing subparagraph (ii) of this Section 11(a), the Company~~ Board shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right under Section 11(a)(ii)) hereof (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute ~~for~~ for, or provide an election to acquire in lieu of, the Adjustment Shares, upon payment of the applicable Purchase ~~Price~~Price (as such price may thereafter be reduced pursuant to this Section 11(a)(iii), as set forth below) any combination of the following having an aggregate value equal to the Current Value (such aggregate value to be determined by the Board based upon the advice of a nationally-recognized investment banking firm selected by the Board): (1) ~~cash~~common stock, preferred stock, notes, and/or other securities of one or more Subsidiaries of the Company, (2) a reduction in the current Purchase Price, (3) Common ~~Shares or~~ Shares, preferred shares and/or other equity securities of the ~~Company (including~~Company, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), and/or (4) debt ~~securities of the Company~~securities, ~~(5)~~ cash, and/or other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors assets of the Company; provided, however, if this Section 11(a)(iii) is applicable and the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) ~~expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)~~expires, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.exercise

Appears in 1 contract

Sources: Rights Agreement (Schnitzer Steel Industries Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred Shares~~ shares of Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares~~shares of Common Stock, (C) combine the outstanding ~~Preferred Shares~~ shares of Common Stock into a smaller number of ~~shares,~~ shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred Shares~~ shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e~~) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares~~ shares of Common Stock or other capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares~~ shares of Common Stock or other capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Common Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person (other than an Exempt Person~~, alone or together with its Affiliates and Associates, shall~~), at any time after the ~~Rights Dividend Declaration Date, become~~ date of this Agreement is or becomes an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the ~~first~~ occurrence of such event (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a ~~Right (~~Right, except as provided below and in Section 7(e~~) hereof)~~ ), shall thereafter have ~~the~~ a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~ten-~~hundredths~~ thousandths of a ~~Preferred Share covered by each~~ share of Common Stock for which a Right ~~immediately prior to the Section 11(a)(ii) event~~was theretofore exercisable, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~number of one ~~one~~ten-~~hundredths~~ thousandths of a ~~Preferred Share~~ share of Common Stock for which a Right was exercisable immediately prior to the first occurrence of a the Section 11(a)(ii) Event, and (y) dividing that product (which, following such first ~~occurrence,~~ occurrence shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the ~~current market price~~ Current Per Share Market Price (determined pursuant to Section 11(d)) ~~hereof~~of the Common Stock on the date of the occurrence of the Section 11(a)(ii) ~~per Common Share on~~ Event (such number of shares is herein called the "Adjustment Shares"); provided, however, that the Purchase Price and number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any event occurring after the date of such first ~~occurrence (such number of shares, the “Adjustment Shares”)~~occurrence. (iii) In the event that after the Distribution Date or the occurrence of a Section 11(a)(ii) Triggering Event, the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights~~ Rights, are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company by vote of a majority of its Board of Directors shall: (A) determine the excess of (1) the value of the shares of Common Stock, or Adjustment Shares in accordance with Section 11(a)(ii), as the case may be, issuable upon the exercise of a Right (the “"Current Value”) "), over (2) the Purchase Price (such ~~excess,~~ excess being the “"Spread~~”),~~ ") and (B) with respect to each Right, make adequate provision to substitute for ~~the~~ such shares of Common Stock or Adjustment Shares, as the case may be, upon ~~payment~~ exercise of the ~~applicable Purchase Price~~Rights, (1) cash, (2) a reduction in the Purchase Price, (3) shares of Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of other securities, which the Board of Directors ~~of the Company~~ has deemed to have substantially the same value and economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such ~~preferred shares, “preferred share equivalents”~~shares or units of shares of other securities being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the Distribution Date, or in the case of a Section 11(a)(ii) Event the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than one hundred twenty (120) days after the Distribution Date or the Section 11(a)(ii) Trigger Date, as the case may be, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action is to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect, each time with prompt notice thereof to the Rights Agent. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price per~~ Current Per Share Market Price of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Distribution Date or the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Per Share Market Price of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than Rights), options or warrants to all holders of ~~Preferred Shares~~ Common Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.such

Appears in 1 contract

Sources: Rights Agreement (Unigene Laboratories Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) alone or together with its Affiliates and Associates, shall, at any ~~time after the Rights Dividend Declaration Date~~time, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the Continuing Directors, after receiving advice from one or more nationally recognized investment banking firms to be in the best interests of the Company and its stockholders and after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value (a "Qualifying Offer"), or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed ~~to have~~ (based, among other things, on the ~~same value as one one-hundredth~~ dividend and liquidation rights of ~~a Preferred Share (~~such preferred shares) to have substantially the same economic value as Common Shares (such securities, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.shal

Appears in 1 contract

Sources: Rights Agreement (Sunsource Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights issued (or to be issued) and outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon ~~payment~~ exercise of ~~the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if~~ such Right ~~had been exercised immediately prior to such date~~ and at a time when the Preferred Share transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any ~~adjustment required pursuant to Section 11(a)(ii) hereof.~~Rights (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such~~ Person ~~to become~~ becomes an Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided ~~below and~~ in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to ~~the first occurrence of a Section 11(a)(ii) Event~~such Person becoming an Acquiring Person, and (y) dividing that product ~~(which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement)~~ by 50% of the current market price (as defined in and determined pursuant to Section 11(d) hereof) per Common Share on the date of such ~~first~~ occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles ~~of Incorporation~~ but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company., (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.or (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.Such (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to and not including such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following and not including such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Share of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Share payable in Common Shares or securities convertible into Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after but not including the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each ~~day~~ Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (“"Nasdaq”)") or such other system then in use, or, if on any such date the Common Shares are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Shares selected by the Board of Directors of the Company. If on any such date no ~~market-~~market maker is making a market in the Common Shares, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Safeguard Scientifics Inc Et Al)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its authorized capital ~~stock~~ in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or ~~capital stock~~shares of authorized capital, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or ~~capital stock~~shares of authorized capital, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which are authorized by~~ constituting the Company’s ~~Articles of Incorporation~~ authorized share capital, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ~~(2)~~ the Purchase Price (such excess, the “Spread”), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board ~~of Directors of~~ in office at the ~~Company~~ time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, hereinafter referred to as “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board ~~of Directors of~~ in office at the ~~Company based upon~~ time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board determines in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per Common Share ~~(as determined pursuant to Section 11(d) hereof)~~ on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per ~~share market price” of the~~ Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date. For purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the ~~current market price of a~~ Current Market Price per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Share of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Share payable in Common Shares or securities convertible into Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, ~~and prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.such

Appears in 1 contract

Sources: Rights Agreement (Tsakos Energy Navigation LTD)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event shall be deemed~~ any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to ~~occur in~~ the ~~event~~ terms of any ~~Person~~such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding, unless the event causing ~~such Person~~ the 20% threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) ~~hereof. Promptly~~ hereof or (B) subject to the requirements of this Section 11(a)(ii), (x) the Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination by the Board of Directors that such Person, alone or together with its Affiliates and Associates, has or is likely to, at any time after the Rights Dividend Declaration Date, become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock, after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate, that (a) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or would cause directly or indirectly, the Company to change its strategic direction under circumstances where the Board of Directors believes that such change is not in the best interests of the Company and its stockholders, employees, customers, suppliers or other constituencies of the Company and its Subsidiaries, (b) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or would cause pressure on the Company to take action or enter into a transaction or series of transactions, including by causing a transaction with such Person or another Person which would provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best longterm interests of the Company and its stockholders, but for the actions and possible actions of such Person, would not be served by taking such action or entering into such transactions or series of transactions at that time or (c) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company's ability to maintain its competitive position) on the business or prospects of the Company, or (d) such Beneficial Ownership otherwise is determined to be not in the best interests of the Company or its stockholders, employees, customers, suppliers, or other constituents of the Company or its Subsidiaries, and (y) such Person has become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the ~~then~~ then-current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right ~~was~~ would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event~~Event assuming the Distribution Date had already occurred, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”").. Notwithstanding the provisions of Section 11(a)(ii)(B) hereof, the Board of Directors of the Company may not declare a Person to be an Adverse Person if, prior to the time that such Person acquired 10% or more of the shares of Common Stock then outstanding, such Person provided to the Board of Directors in writing a statement of such Person's purpose and intentions in connection with the proposed acquisition of Common Stock, together with any other information reasonably requested of such Person by the Board of Directors, and the Board of Directors, based on such statement and reasonable inquiry and investigation, including consultation with such Persons as such directors shall deem appropriate, determines to notify and notifies such Person in writing that it will not (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles of Incorporation~~ 's Restated Charter but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have substantially the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share~~ "common stock equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing ~~Preferred Shares~~ shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) a reduction in Purchase Price, (3) Common ~~Shares~~Stock, or other equity securities of the Company (including without limitation ~~preferred share~~ common stock equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) ~~Preferred Shares,~~ Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred share~~ common stock equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.s

Appears in 1 contract

Sources: Rights Agreement (First American Corp /Tn/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration~~ Record Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ Fractional Shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock theretofore exercisable, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the Current Market Price used to determine the number of Adjustment Shares) (the “Current Value”) over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock, such as the Preferred Stock, that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock being referred to as the “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “~~Section 11(a)(ii)~~ Flip-In Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“~~equivalent preferred shares~~Equivalent Preferred Stock”)) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than (i) a regular ~~quarterly~~ periodic cash dividend out of the earnings or retained earnings of the Company the record date for which occurs at a time when there is no Acquiring Person or (ii) a regular periodic cash dividend out of the earnings or retained earnings of the Company, the record date for which occurs at a time when there is an Acquiring Person, at a rate not in excess of 120% of the rate of the last cash dividend theretofore paid), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per share ~~market price~~of any security (a “Security” for the purpose of ~~the Common Shares~~ this Section 11(d)(i)) of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the Common Shares~~ such Security for the 30 consecutive Trading Days immediately prior to but not including such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of a Security on any date shall be deemed to be the average of the daily Closing Prices per share of such Security for the 10 consecutive Trading Days immediately following but not including such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a ~~Common Share~~ Security is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on such Security other than a regular quarterly cash dividend or the ~~Common Shares, payable in Common Shares or securities convertible into Common Shares~~dividend of the Rights, or (B) any subdivision, combination or reclassification of ~~the Common Shares~~such Security, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Companytake into account ex-dividend trading. If ~~on any such date no market-maker~~ a Security is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or not so listed or traded, “~~current~~ Current Market Price” per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Innospec Inc.)

Appears in 1 contract

Sources: Exchange Agreement (Citigroup Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all shareholders, as determined by at least a majority of the continuing Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Amended and Restated Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company -18- shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the daily closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the prices per Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open Share for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.ten (10) consecutive

Appears in 1 contract

Sources: Rights Agreement (Union Pacific Resources Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company ~~shall~~ shall, at any time after the date of this ~~Agreement~~ Agreement, (A) declare a dividend on the ~~Preferred~~ Series A Shares payable in ~~Preferred~~ Series A Shares, (B) subdivide the outstanding ~~Preferred~~ Series A Shares, (C) combine the outstanding ~~Preferred~~ Series A Shares into a smaller number of ~~shares~~Series A Shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Series A Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ combination, or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital stock~~, as the case may be~~, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Series A Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, ~~combination~~ combination, or reclassification. If an event occurs ~~which would require~~ that requires an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event that any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any entity organized, appointed, or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, unless the event causing such ~~Person~~ person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly following~~ , or is an acquisition of Common Shares pursuant to a tender or exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the ~~first occurrence~~ members of the Board who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (a) at a ~~Section 11(a)(ii~~price that is fair to the stockholders (taking into consideration all factors that such members of the Board deem relevant, including, without limitation, long-term prospects and value of the Company and the prices and terms that such members of the Board believe, in good faith, could reasonably be achieved if the Company's assets were sold on an orderly basis designed to realize maximum value), and (b) ~~Event~~otherwise in the best interest of the Company and its stockholders (a "Qualified Offer"), then, in such case, proper provision shall be made so that each holder of a ~~Right (~~Right, except as provided below and in Section 7(e) hereof) , shall thereafter have ~~the~~ a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number of one one-hundredths of a Preferred Share covered by each Right immediately prior~~ Series A Shares, and subject to the provisions of Section ~~11(a)(ii~~11(a)(iii) ~~event~~below, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a ~~Preferred~~ Series A Share for which a Right was exercisable immediately prior to the first occurrence of a an event set forth in this Section 11(a)(ii~~) Event~~), and ~~(y)~~ dividing that product (~~which~~which product, following such first occurrence, shall ~~thereafter~~ be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by (y) 50% of the current per share market price of the Common Shares (determined pursuant to Section 11(d) hereof~~) per Common Share~~ ), but not less than the par value thereof, on the date of such first occurrence (such number of shares, being referred to herein as the “"Adjustment Shares”"). (iii) In the event that the ~~number~~ total of ~~Preferred~~ the Common Shares ~~which~~ that are ~~authorized by the Company’s Articles of Incorporation~~ issued but not outstanding or and authorized but unissued (excluding Common Shares reserved for issuance ~~for purposes~~ pursuant to the specific terms of any indenture, option plan, or other ~~than upon exercise of the Rights are~~ agreement) is not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, then the ~~foregoing subparagraph (ii) of this Section 11(a), the Company~~ Board shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right under Section 11(a)(ii)) hereof (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute ~~for~~ for, or provide an election to acquire in lieu of, the Adjustment Shares, upon payment of the applicable Purchase ~~Price~~Price (as such price may thereafter be reduced pursuant to this Section 11(a)(iii), as set forth below) any combination of the following having an aggregate value equal to the Current Value (such aggregate value to be determined by the Board based upon the advice of a nationally-recognized investment banking firm selected by the Board): (1) ~~cash~~common stock, preferred stock, notes, and/or other securities of one or more Subsidiaries of the Company, (2) a reduction in the current Purchase Price, (3) Common ~~Shares or~~ Shares, preferred shares and/or other equity securities of the ~~Company (including~~Company, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), and/or (4) debt ~~securities of the Company~~securities, ~~(5)~~ cash, and/or other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors assets of the Company; provided, however, if this Section 11(a)(iii) is applicable and the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) ~~expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)~~expires, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, ~~cash, which shares and/or~~ cash ~~have~~ in an aggregate ~~value~~ amount equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days following the first occurrence of a Section 11(a)(ii) Event, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share shall be deemed to be~~ the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current per share market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on ~~any~~ the date ~~shall be deemed to be the average~~ of the ~~daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price~~ first occurrence of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”Section 11(a)(ii), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Cpi Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration~~ Record Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ Fractional Shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock theretofore exercisable, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the Current Market Price used to determine the number of Adjustment Shares) (the “Current Value”) over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock, such as the Preferred Stock, that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock being referred to as the “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “~~Section 11(a)(ii)~~ Flip-In Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“~~equivalent preferred shares~~Equivalent Preferred Stock”)) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per share ~~market price~~of any security (a “Security” for the purpose of ~~the Common Shares~~ this Section 11(d)(i)) of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the Common Shares~~ such Security for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period but not ~~to be fully comparable with the closing price on~~ including such date, ~~then~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~each such closing price so used~~ the “Current Market Price” per share of a Security on any date shall be ~~appropriately adjusted~~ deemed to ~~make it fully comparable with the closing price on such date. The closing price for each day shall~~ be the ~~last sale price, regular way, or, in case no such sale takes place on such day, the~~ average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.of

Appears in 1 contract

Sources: Rights Agreement (Commvault Systems Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all shareholders, as determined by at least a majority of the members of the Board of Directors of the Company, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Amended and Restated Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of the Company in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of the Company ~~based upon~~ in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be ~~fully comparable with~~ the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.av

Appears in 1 contract

Sources: Rights Agreement (Union Pacific Resources Group Inc)

Appears in 1 contract

Sources: Rights Agreement (Evergreen Bancorp Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (ia) iv) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or capital stock, as the case may be, issuable upon exercise of one Right. If an event occurs which would require an adjustment under both this Section ~~11(a)(i~~11(a) and Section 11(a)(ii) hereof, the adjustment provided for in this Section ~~11(a)(i~~11(a) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (iii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date,~~ Person shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~ten-~~hundredths~~ thousandths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one ~~one~~ten-~~hundredths~~ thousandths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (~~iii~~ii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s ~~Articles of Incorporation~~ Charter but not ~~outstanding~~ outstanding, subscribed for or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company ~~shall:~~ shall (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”~~) over (2) the Purchase Price (such excess, the “Spread”~~), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board of Directors of the Company has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock being referred to as “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board of Directors of the Company determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the “Substitution Period”). To the extent that the Company determines that action should to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such stockholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“~~equivalent preferred shares~~Equivalent Preferred Stock”)) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or capital stock, as the case may be, issuable upon exercise of one Right. In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) ~~of evidences of indebtedness,~~ cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of Preferred Stock or capital stock, as the case may be, issuable upon exercise of one Right. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Section 382 Rights Agreement (COHEN & Co INC.)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the Continuing Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.such

Appears in 1 contract

Sources: Rights Agreement (Cotelligent Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) ~~In the event~~ If the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred Shares~~ Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares~~Common Stock into a greater number of shares, (C) combine the outstanding ~~Preferred Shares~~ Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred Shares~~ Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or ~~reclassification~~reclassification and, ~~and~~ if applicable, the number ~~and~~ and/or kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such ~~date,~~ date shall be ~~proportionately~~ appropriately adjusted so that the holder of any Right (including any Rights received pursuant to any dividend, subdivision or reclassification and less any Rights eliminated as a result of any combination) exercised immediately after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ transfer books of the Company were open, he or she would have owned ~~upon~~ following such exercise ~~and been entitled to receive~~ by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A If: (A) the Company or any Acquiring Person publicly announces (including without limitation by filing a report pursuant to Section ~~11(a)(ii~~13(d) ~~Event~~ under the Exchange Act) that any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, at any time after the Rights Dividend Declaration Date, has become the Beneficial Owner of thirty percent (30%) or more of the shares of Common Stock then outstanding, unless the event causing the thirty percent (30%) threshold to be crossed is a transaction set forth in Section 13(a) hereof, or is an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after reasonable inquiry and investigation, including consultation with such persons as such members of the Board shall deem appropriate, to be ~~deemed~~ (a) at a price which is fair to ~~occur~~ shareholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the ~~event~~ best interests of the Company and its shareholders, or (B) a majority of the Directors of the Company who are not officers or employees of the Company ("Outside Directors") shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, ~~shall~~has become the Beneficial Owner of an amount of Common Stock which the Outside Directors determine to be substantial (which amount shall in no event be less than ten percent (10%) of the shares of Common Stock then outstanding) and a determination by the Outside Directors, ~~at any time~~ after ~~the Rights Dividend Declaration Date~~reasonable inquiry and investigation, ~~become an Acquiring Person~~including consultation with such persons as such directors shall deem appropriate, ~~unless the event causing~~ that (a) such Beneficial Ownership by such Person is intended to ~~become an Acquiring~~ cause, is reasonably likely to cause or will cause the Company to repurchase the Common Stock beneficially owned by such Person is or to cause pressure on the Company to take action or enter into a transaction ~~set forth~~ or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Outside Directors determine that the best long-term interests of the Company and its shareholders would not be served by taking such action or entering into such transactions or series of transactions at that time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers, suppliers or employees or impairment of the Company's ability to maintain its competitive position or effectuate a transaction that the Outside Directors deem to be in ~~Section 13(a~~the best interests of the Company's shareholders) ~~hereof. Promptly~~ on the business or prospects of the Company to the detriment of the Company's shareholders, or (c) such Beneficial Ownership otherwise is determined to be not in the best interests of the Company and its shareholders, employees, customers or communities in which the Company and its Subsidiaries do business, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by receive (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant subject to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.upon exercise

Appears in 1 contract

Sources: Rights Agreement (First Financial Bancorp /Oh/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i1) ~~In the event~~ If the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the ~~Preferred~~ Common Shares payable in ~~Preferred~~ Common Shares, (B) subdivide the outstanding ~~Preferred~~ Common Shares into a greater number of Common Shares, (C) combine the outstanding ~~Preferred~~ Common Shares into a smaller number of ~~shares,~~ Common Shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Common Shares (including any such reclassification in connection with a ~~consolidation~~ consolidation, merger or ~~merger~~ statutory share exchange in which the Company is the ~~continuing~~ continuing, surviving or ~~surviving~~ acquiring corporation), except as provided in Section 11(m) with respect to an event described in clause (A), (B) or (C) above that occurs before the Distribution Date or as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such ~~date~~date pursuant to the exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price, or, after a Section 11(a)(2) Event or Section 13 Event, the Adjusted Exercise Price then in ~~effect~~effect (and any applicable transfer taxes), the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be, which~~stock that, if such Right had been exercised immediately ~~prior to~~ before such date and at a time when the ~~Preferred Share~~ Common Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both ~~this~~ Section ~~11(a)(i~~11(a)(1) and Section ~~11(a)(ii) hereof~~11(a)(2), the adjustment provided for in this Section ~~11(a)(i~~11(a)(1) shall be in addition to, and shall be made ~~prior to~~before, any adjustment required pursuant to Section ~~11(a)(ii) hereof~~11(a)(2). (ii2) A Subject to Section ~~11(a)(ii) Event~~ 24, if any Person shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person ~~is a transaction set forth in~~ (other than pursuant to any Section ~~13(a) hereof. Promptly following~~ 13 Event occurring on or after the ~~first occurrence of a Section 11(a)(ii) Event~~Distribution Date or within 15 days prior thereto), proper provision shall be made so that each holder of a ~~Right (except as provided below and in~~ Right, subject to Section ~~7(e) hereof)~~ 11(a)(3), shall thereafter have ~~the~~ a right to receive, upon exercise thereof at by payment (in lieu of the payment required to be made pursuant to Section 7 to exercise a Right) of an amount equal to the product of (i) the number of one-tenths of a Common Share that would otherwise be issuable upon exercise of a Right after the Distribution Date if no Section 11(a)(2) Event or Section 13 Event had occurred and (ii) ten times the then current Purchase Price for one-tenth of a Common Share that would have been payable in accordance with the terms of this ~~Agreement, in lieu of~~ Agreement if such ~~number of one one-hundredths of a Preferred Share covered by each~~ Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable had been exercised immediately prior to the first occurrence of a Section ~~11(a)(ii~~11(a)(2) Event or Section 13 Event, such number of whole Common Shares of the Company (in lieu of the number of one-tenths of a Common Share for which such Right would have been exercisable after the Distribution Date and prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event) as shall equal the result obtained by (A) multiplying the then-current Purchase Price for one-tenth of a Common Share immediately prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event by ten times the number of one-tenths of a Common Share for which a Right would have been exercisable after the Distribution Date and immediately prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event and (yB) dividing that product ~~(which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement)~~ by 50% of the then-current per-share market price of the Company's Common Shares (determined pursuant to Section 11(d)) ~~hereof) per Common Share~~ on the date of such occurrence. The exercise price of a Right determined pursuant to the immediately preceding sentence at the time of the exercise of the Right, after giving effect to any adjustments in the Purchase Price pursuant to this Section 11 but subject to Section 11(a)(3), is referred to in this Agreement as the "Adjusted Exercise Price." From and after the first occurrence of a Section 11(a)(2) Event or a Section 13 Event, any Rights that are beneficially owned by any Acquiring Person (or any Associate or Affiliate thereof) or were beneficially owned by any Acquiring Person (or any Associate or Affiliate thereof) after the Acquiring Person became an Acquiring Person shall become void without any further action and no holder of such ~~number~~ Rights shall thereafter have any rights to exercise such Rights or any other rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. No Right Certificate shall be issued pursuant to Section 3 that represents Rights that would be void pursuant to the preceding sentence; no Right Certificate shall be issued at any time upon the transfer of ~~shares~~any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate of such an Acquiring Person or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the ~~“Adjustment Shares”)~~Rights Agent for transfer to an Acquiring Person or any Associate or Affiliate of such Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be canceled. The Company shall use all reasonable efforts to ensure that the provisions of this Section 11(a)(2) are complied with, but shall have no liability to any holder of a Right Certificate or other Person as a result of its failure in good faith to make any determinations with respect to an Acquiring Person or its Affiliates or Associates. (~~iii~~3) In If, on the ~~event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise~~ date of the ~~Rights are~~ occurrence of a Section 11(a)(2) Event (the "Adjustment Date"), the Company does not have sufficient authorized, unissued and unreserved Common Shares available to permit the exercise in full of all Rights that are exercisable on the ~~Rights~~ Adjustment Date for the number of Common Shares per Right provided for in ~~accordance with the foregoing subparagraph (ii) of this~~ Section ~~11(a~~11(a)(2), then the exercise price of a Right and the number of Common Shares to be delivered by the Company ~~shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable~~ upon ~~the~~ exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (further adjusted as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares provided in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv3)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Hutchinson Technology Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event (A) any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date of this Agreement, become an Acquiring Person~~, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event~~, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right ~~was~~ would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event~~Event assuming the Distribution Date had already occurred, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provision of Section 13(a) hereof, then only the provisions of Section 13(a) hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the ~~Company~~ Company, by resolution of its Board of Directors, shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have substantially the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share equivalents”~~"Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days ~~following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y)~~ after the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires following the occurrence of a Section 11(a)(ii) Event (the ~~later of (x) and (y) being referred to herein as the “~~"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash shall have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, or that additional time is required for the Board of Directors to decide the appropriate form of distribution to be made and to determine the value thereof, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares or to make such decision and determination, as the case may be (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price per Common Share~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ "Common Stock Equivalent" shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing ~~Preferred Shares~~ shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a), the ~~Company may with respect to each Right~~Company, ~~if a majority of members~~ by resolution of the Board of Directors ~~determine~~ (which shall reflect a determination by the Board that ~~such~~ the action described below is in the best interests of the Company and not contrary to the interests of the holders of Rights), may make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~Stock, or other equity securities of the Company (including without limitation ~~preferred share equivalents~~Common Stock Equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current ~~Value~~ Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial ~~advisers~~ advisors selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) ~~Preferred Shares,~~ Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred share equivalents~~Common Stock Equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the ~~Spread~~ Spread, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b2) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c3) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) and Section 11(a)(iv) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) and Section 11(a)(iv) hereof, the "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "Current Market Price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (“"Nasdaq”)") or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.q

Appears in 1 contract

Sources: Rights Agreement (Agribiotech Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the members of the Board of Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of in office at the ~~Company~~ time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of in office at the ~~Company based upon~~ time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~. For purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~however, that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the daily closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.pric

Appears in 1 contract

Sources: Rights Agreement (Maritrans Inc /De/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.capital (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event ~~any Person, alone or together with its Affiliates and Associates, shall,~~ that at any time after the ~~Rights Dividend Declaration Date~~Record Date any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan) shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the first occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-~~hundredths~~ thousandths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share as shall equal~~ Common Stock of the Company that equals the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (~~which~~such product, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”").. Notwithstanding the foregoing provisions of this Section 11(a)(ii), the adjustment to the terms of the Rights provided for in the preceding sentence shall not be triggered by, and the term "Section 11(a)(ii) Event" shall not be deemed to include, an acquisition of Common Stock that is either (A) a transaction set forth in Section 13(a) hereof, or (B) an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined, prior to the consummation of such acquisition, by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from a nationally recognized investment banking firm selected by the Board of Directors of the Company, to be (a) at a price that is fair to stockholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s 's Articles of ~~Incorporation~~ Organization but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect, each time with prompt written notice thereof to the Rights Agent. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) ~~on the Section 11(a)(ii) Trigger Date and the value of any “preferred~~ per share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company.Stock on the (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be ~~binding on the Rights Agent and the holders~~ conclusive for all purposes. Shares of ~~the Rights.~~ Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock on such record date. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.successively (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current market price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following but not including such date; provided, however, that in the event that the current market price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ expiration of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The~~ the Nasdaq Stock ~~Market, Inc.~~ Market (“"Nasdaq”)") or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board of Directors of the Company. If on any such date no ~~market-~~market maker is making a market in the Common ~~Shares~~Stock, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the Company shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common ~~Shares are~~ Stock is not publicly held or not so listed or traded, “"current market price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Perkinelmer Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a) The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.~~ (i) ~~In the event~~ If the Company shall at any time after the date of this Agreement ~~(A) declare~~ pay a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, ~~(B)~~ subdivide the outstanding Preferred ~~Shares~~Stock into a greater number of shares, ~~(C)~~ combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or ~~(D)~~ issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger ~~in which~~ involving the ~~Company is the continuing or surviving corporation~~Company)~~, except as otherwise provided in this Section 11(a) and Section 7(e) hereof~~, the Purchase Price in effect ~~at the time of~~ immediately prior to the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or other capital ~~stock, as the case may be,~~ stock issuable on such ~~date,~~ date shall be proportionately adjusted so that ~~the~~ each holder of ~~any~~ a Right ~~exercised after such time~~ shall (except as otherwise provided herein, including Section 7(d)) thereafter be entitled to receive, upon ~~payment of~~ exercise thereof at the Purchase Price ~~then~~ in ~~effect~~effect immediately prior to such date, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or other capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ applicable transfer books of the Company were open, he such holder would have ~~owned~~ been entitled to receive upon such exercise and ~~been entitled to receive~~ by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which would require~~ that requires an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in the event~~ If any Person, alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date of this Agreement, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that then each holder of a Right shall (except as otherwise provided ~~below and in~~ herein, including Section ~~7(e~~7(d)) ~~hereof) shall~~ thereafter ~~have the right~~ be entitled to receive, upon exercise thereof at the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable effect immediately prior to the first occurrence of a Section 11(a)(ii) Event, ~~and (y) dividing that product (which~~in lieu of Preferred Stock, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of ~~shares~~duly authorized, ~~the “Adjustment Shares”). (iii) In the event that the number~~ validly issued, fully paid and nonassessable shares of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price Common Stock (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) shares being referred to herein as the ~~“Section 11(a)(ii~~"Adjustment Shares") ~~Trigger Date”), then the Company~~ as shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined result obtained by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.dividing

Appears in 1 contract

Sources: Rights Agreement (Stratus Properties Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the ~~Preferred Shares~~ outstanding shares of Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares~~shares of Common Stock, (C) combine the outstanding ~~Preferred Shares~~ shares of Common Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the Preferred Shares~~ Common Stock (~~including~~ including, without limitation, any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares~~ shares of Common Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares~~ shares of Common Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Common Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration~~ Record Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Common Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ Fractional Shares of ~~one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Common Stock theretofore exercisable, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the Current Market Price used to determine the number of Adjustment Shares) (the “Current Value”) over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock are herein referred to as “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “~~Section 11(a)(ii)~~ Flip-In Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 120 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company or the Board of Directors of the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ Common Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) ~~Preferred Shares~~ Common Stock (or shares having substantially the same rights, privileges and preferences as the ~~Preferred Shares~~ shares of Common Stock (“~~equivalent preferred shares~~Equivalent Common Stock”)) or securities convertible into ~~Preferred Shares~~ Common Stock or ~~equivalent preferred shares~~ Equivalent Common Stock at a price per ~~Preferred Share~~ share of Common Stock or per share of ~~equivalent preferred shares~~ Equivalent Common Stock (or having a conversion price per share, if a security convertible into ~~Preferred Share~~ Common Stock or ~~equivalent preferred share~~Equivalent Common Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of ~~Preferred Shares~~ Common Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of ~~Preferred Shares which~~ shares of Common Stock that the aggregate offering price of the total number of ~~Preferred Shares~~ shares of Common Stock and/or ~~equivalent preferred shares~~ Equivalent Common Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of additional ~~Preferred Shares~~ shares of Common Stock and/or ~~equivalent preferred shares~~ Equivalent Common Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Shares of Common Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred Shares~~ Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in ~~Preferred Shares~~Common Stock, but including any dividend payable in ~~shares~~ stock other than ~~Preferred Shares~~Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of ~~Preferred Shares~~ Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of ~~Preferred Share~~ Common Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of ~~Preferred Shares~~Common Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a Common ~~Share~~ Stock is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on such Common Stock other than a regular quarterly cash dividend or the ~~Common Shares, payable in Common Shares or securities convertible into Common Shares~~dividend of the Rights, or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which If the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or not so listed or traded, “~~current~~ Current Market Price” per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (SPSS Inc)

Appears in 1 contract

Sources: Rights Agreement (Humana Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares or other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares,~~ Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon exercise of one Right. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall, for a period of 60 days after the later of (i) the occurrence of any such event or (ii) the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement, such number of Common Shares (or, in the discretion of the Board of Directors, one one- hundredths of a Preferred Share) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one- hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and (y) dividing that product by 50% of the then current per share market price of the Corporation’s Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as the “Adjustment Shares”); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that there shall not be sufficient treasury shares or authorized but unissued (and unreserved) Common Shares to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable (and the Board has determined to make the Rights exercisable into fractions of a Preferred Share), notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter ~~have~~ represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) ~~multiplying the then-current Purchase Price by the then-~~a number of ~~one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior~~ (or fractions of) Common Shares (up to the ~~first occurrence~~ maximum number of ~~a Section 11(a)(ii~~Common Shares which may permissibly be issued) ~~Event,~~ and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share or a number of (~~such preferred shares, “preferred share equivalents”)), (4~~or fractions of) ~~debt~~ other equity securities of the ~~Company~~Corporation (or, ~~(5) other assets, or (6) any combination~~ in the discretion of the ~~foregoing~~Board of Directors, ~~having an aggregate value equal to the Current Value, where such aggregate value has been determined by~~ debt) which the Board of Directors of the ~~Company based upon~~ Corporation has determined to have the ~~advice~~ same aggregate current market value (determined pursuant to Sections 11(d)(i) and (ii) hereof, to the extent applicable) as one Common Share (such number of ~~one~~ (or ~~more investment~~ fractions of) Preferred Shares (or ~~financial advisors selected by the Board of Directors~~ other equity securities or debt of the ~~Company~~Corporation) being referred to as a “capital stock equivalent”), equal in the aggregate to the number of Adjustment Shares; provided, however, if sufficient Common Shares and/or capital stock equivalents are unavailable, then the ~~Company~~ Corporation shall, to the extent permitted by applicable law, take all such action as may be necessary to authorize additional Common Shares or capital stock equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Corporation is unable to cause sufficient Common Shares and/or capital stock equivalents to be available for issuance upon exercise in full of the Rights, then each Right shall ~~not have made adequate provision~~ thereafter represent the right to ~~deliver value pursuant~~ receive the Adjusted Number of Shares upon exercise at the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term “Adjusted Number of Shares” shall be equal to ~~clause~~ that number of (Bor fractions of) ~~above within thirty~~ Common Shares (30and/or capital stock equivalents) ~~days following~~ equal to the ~~later~~ product of (x) the ~~first occurrence~~ number of ~~a Section 11(a)(ii) Event~~ Adjustment Shares and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall be~~ is the number of ~~Preferred~~ Common Shares ~~outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price~~ (and/or capital stock equivalents) available for issuance upon exercise of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, Rights and the denominator of which ~~shall be~~ is the aggregate number of ~~Preferred~~ Adjustment Shares ~~outstanding on such record date, plus the~~ otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on available) (such ~~date~~ fraction being referred to as ~~determined in good faith by~~ the ~~Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent~~“Proration Factor”). The ~~term~~ “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market priceAdjusted Purchase Price” shall mean the ~~fair value per share as determined in good faith by~~ product of the Purchase Price and the Proration Factor. The Board of Directors may, but shall not be required to, establish procedures to allocate the right to receive Common Shares and capital stock equivalents upon exercise of the ~~Company, whose determination shall be described in a statement filed with the~~ Rights ~~Agent~~among holders of Rights.

Appears in 1 contract

Sources: Rights Agreement (Oneok Inc /New/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), then and in each such event, except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A In the event that: (A) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become an Acquiring Person, unless the event causing the Person to become an Acquiring Person is (l) a transaction set forth in Section ~~11(a)(ii~~13(a) ~~Event shall~~ hereof or (2) an acquisition of shares of Common Stock pursuant to KEY TECHNOLOGY, INC. PAGE 14 SECOND AMENDED AND RESTATED RIGHTS PLAN a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more reputable investment banking firms, to be ~~deemed~~ (a) at a price which is fair to ~~occur~~ shareholders (taking into account all factors which such members of the Board of Directors deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the ~~event~~ best interests of the Company and its shareholders (a "Qualifying Offer"); or (B) the Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, ~~shall~~has, at any time after this Agreement has been filed with the ~~Rights Dividend Declaration Date~~Securities and Exchange Commission as an exhibit to a filing under the Securities Act or Exchange Act, become ~~an Acquiring Person~~the Beneficial Owner of a number of shares of Common Stock which the Board of Directors of the Company determines to be substantial (which number of shares shall in no event represent less than l0% of the outstanding shares of Common Stock) and a determination by the Board of Directors of the Company, ~~unless the event causing~~ after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate and consideration of such factors as are permitted by applicable law, that (a) such Beneficial Ownership by such Person is intended to ~~become an Acquiring~~ cause the Company to repurchase the shares of Common Stock beneficially owned by such Person is or to cause pressure on the Company to take action or enter into a transaction ~~set forth~~ or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company would not be served by taking such action or entering into such transaction or series of transactions at the time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company’s ability to maintain its competitive position) on the business or prospects of the Company; then, promptly following the occurrence of any event described in Section ~~13(a~~11(a)(ii)(A) ~~hereof. Promptly following the first occurrence of~~ or (B) hereof (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current KEY TECHNOLOGY, INC. PAGE 15 SECOND AMENDED AND RESTATED RIGHTS PLAN market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s 's Restated Articles of ~~Incorporation~~ Incorporation, as amended at the time (the "Restated Articles of Incorporation"), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), ; and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, : (1l) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a reputable investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (l) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date KEY TECHNOLOGY, INC. PAGE 16 SECOND AMENDED AND RESTATED RIGHTS PLAN and the per-share or per-unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges ~~and preferences~~ as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such ~~adjustment~~ adjustments shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be SECOND AMENDED AND RESTATED RIGHTS PLAN binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ Current Market Price per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with~~ take into account ex-dividend trading or the ~~closing price on such date~~subdivision, combination or reclassification, as the case may be. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.,

Appears in 1 contract

Sources: Rights Agreement (Key Technology Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred Shares~~ Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares~~Common Stock, (C) combine the outstanding ~~Preferred Shares~~ Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred Shares~~ Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section ~~7(e)~~ 7 hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares~~ shares of Common Stock or ~~capital stock~~other securities, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares~~ shares of Common Stock or ~~capital stock~~other securities, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Common Stock transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Person shall ~~be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date,~~ become an Acquiring Person, ~~unless the event causing such Person~~ other than pursuant to ~~become an Acquiring Person is a~~ any transaction set forth in Section 13(a) hereof~~. Promptly following~~ , or (B) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the ~~first~~ Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or 10 13 series of transactions involving the Company or any of its Subsidiaries, other than a transaction or transactions to which the provisions of Section 13(a) apply (whether or not with or into or otherwise involving an Acquiring Person) which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, subject to Section 23 and Section 24, promptly after the occurrence of a an event described in Clause (A) or Clause (B) of Section 11(a)(ii) ~~Event~~hereof, proper provision shall be made so that each holder of a Right (except as provided below ~~and~~ or in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, ~~in lieu of~~ such number of ~~one one-hundredths~~ shares of ~~a Preferred Share covered by each Right immediately prior to~~ Common Stock of the ~~Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share~~ Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and ~~(y)~~ dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by (y) 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles of Incorporation~~ 's charter but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common Shares or~~ other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such ~~preferred shares~~shares of other equity securities, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) ~~above~~ hereinabove within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) ~~Event~~ Event, and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), ~~then~~ then, the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which ~~shares and/or cash have an~~ in the aggregate ~~value~~ are equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days following the first occurrence of a Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11 14 11(d) hereof) per share of the Common Stock on the date of the first occurrence of a Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share~~ "common stock equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) ~~In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect~~ The right to ~~each Right, if a majority of members of the Board of Directors determine that such action is in the best interests~~ buy Common Stock of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to ~~this subparagraph (iv)~~Section 11(a)(ii) ~~(1) cash, (2)~~ hereof shall not arise as a ~~reduction in Purchase Price, (3)~~ result of any Person becoming an Acquiring Person through an acquisition of Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal Stock pursuant to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the CompanyPermitted Offer. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ Common Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares Common Stock at a price per ~~Preferred Share or per~~ share of ~~equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share)~~ Common Stock less than the then current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of ~~Preferred Shares~~ Common Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of ~~Preferred Shares~~ shares of Common Stock which the aggregate offering price of the total number of ~~Preferred Shares~~ shares of Common Stock and/or equivalent ~~preferred shares~~ common stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of additional ~~Preferred Shares~~ shares of Common Stock and/or equivalent ~~preferred shares~~ common stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Shares of Common Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. ~~Such~~ Subject to Section 11(e) hereof, such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred Shares~~ Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular ~~quarterly~~ periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in ~~Preferred Shares~~Common Stock or a subdivision of the outstanding Common Stock, but including any dividend payable in ~~shares~~ stock other than ~~Preferred Shares~~Common Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of ~~Preferred Shares~~ Common Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of ~~Preferred Share~~ Common Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of ~~Preferred Shares~~Common Stock; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon the exercise of one Right. ~~Such~~ Subject to Section 11(e) hereof, such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Foothill Independent Bancorp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event (A) any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date of this Agreement, become an Acquiring Person~~, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event~~, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right ~~was~~ would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event~~Event assuming the Distribution Date had already occurred, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provision of Section 13(a) hereof, then only the provisions of Section 13(a) hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the ~~Company~~ Company, by resolution of its Board of Directors, shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have substantially the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share equivalents”~~"Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days ~~following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y)~~ after the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires following the occurrence of a Section 11(a)(ii) Event (the ~~later of (x) and (y) being referred to herein as the “~~"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash shall have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, or that additional time is required for the Board of Directors to decide the appropriate form of distribution to be made and to determine the value thereof, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares or to make such decision and determination, as the case may be (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price per Common Share~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ "Common Stock Equivalent" shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing ~~Preferred Shares~~ shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a), the ~~Company may with respect to each Right~~Company, ~~if a majority of members~~ by resolution of the Board of Directors ~~determine~~ (which shall reflect a determination by the Board that ~~such~~ the action described below is in the best interests of the Company and not contrary to the interests of the holders of Rights), may make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~Stock, or other equity securities of the Company (including without limitation ~~preferred share equivalents~~Common Stock Equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current ~~Value~~ Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial ~~advisers~~ advisors selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) ~~Preferred Shares,~~ Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred share equivalents~~Common Stock Equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the ~~Spread~~ Spread, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.other than computations made

Appears in 1 contract

Sources: Shareholder Rights Agreement (Nexmed Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or shares of capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or shares of capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event that any Person, alone or together with its Affiliates ~~and~~ or Associates, ~~shall, at any time after the Rights Dividend Declaration Date, become~~ becomes an Acquiring Person, ~~unless the event causing such Person~~ then, subject to ~~become an Acquiring Person is a transaction set forth in~~ Section ~~13(a) hereof. Promptly~~ 24 of this Agreement, promptly following the ~~first~~ later of the occurrence of the Share Acquisition Date and the Distribution Date (such event is referred to herein as a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to ~~receive~~receive (subject to the last sentence of Section 23(a)), upon exercise ~~thereof~~ of such Right at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-~~hundredths~~ thousandths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share as shall equal~~ the Company that equals the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in (or repayment of) the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board ~~of Directors of the Company~~ has deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action needs to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be ~~binding on the Rights Agent and the holders of the Rights~~conclusive for all purposes. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share on such record date. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common Shares for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per share of such Common Shares for the ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the current market price per share of a the Common ~~Share~~ Shares is determined during a period following the announcement by the ~~Company~~ issuer of such Common Shares of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Shares payable in such Common Shares or securities convertible into such Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such datereclassification occurs, then, and in each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such daycase, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “"current ~~per share~~ market price” " shall ~~mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.~~be

Appears in 1 contract

Sources: Rights Agreement (Invacare Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital ~~stock~~ shares in a reclassification of the Preferred Shares (~~including~~ including, without limitation, any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e~~) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24, in the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become~~ Person becomes an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that then each holder of a Right (except as provided below and in Section 7(e~~) hereof~~)) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-~~hundredths~~ thousandths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event,~~ Event and (y) dividing that product (which, following such first ~~occurrence,~~ occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d~~) hereof~~)) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares which are authorized by the Company’s ~~Articles~~ articles of ~~Incorporation~~ incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights are~~ Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value~~”) over (2) the Purchase Price (such excess, the “Spread~~”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred shares, such as the Preferred Shares, which the Board of Directors of the Company has deemed to have substantially the same value or economic rights as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares or units of preferred shares, “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, the “Substitution Period”). To the extent the Company determines that action should be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect (with prompt notice of such announcements to the Rights Agent). For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d)) ~~hereof)~~ per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to ~~have~~ equal the ~~same value~~ current market price (as ~~one one-hundredth of a Preferred~~ determined pursuant to Section 11(d)) per Common Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii) hereof~~11(d)) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (~~including~~ including, without limitation, any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular ~~quarterly~~ periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but ~~including~~ including, without limitation, any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b~~) hereof~~)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d~~) hereof~~)) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d~~) hereof~~)) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per such Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days immediately prior to but not including such date, and for purposes of computations made pursuant to Section 11(a)(iii), the “current market price” per Common Share on any date shall be deemed to be the average of the daily closing prices per such Common Share for the ten (10) consecutive Trading Days immediately following but not including such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Shares of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Shares payable in such Common Shares or securities convertible into such Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the “current market price” shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with~~ take into account any trading during the ~~closing price on~~ period prior to such ex-dividend date or record date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.on

Appears in 1 contract

Sources: Section 382 Rights Agreement (Pulte Homes Inc/Mi/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Series G Preferred ~~Shares~~ Stock payable in shares of Series G Preferred ~~Shares~~Stock, (B) subdivide the outstanding Series G Preferred ~~Shares~~Stock, (C) combine the outstanding Series G Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Series G Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Series G Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Series G Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Series G Preferred ~~Share~~ Stock transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification~~. If an~~ ; provided, however, that in no event ~~occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof,~~ shall the ~~adjustment provided for in this Section 11(a)(i) shall~~ consideration to be ~~in addition to, and shall~~ paid upon the exercise of one Right be ~~made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof~~less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of such one Right. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event that any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such~~ Person ~~to become~~ becomes an Acquiring Person is (such event, a ~~transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a~~ "Section 11(a)(ii) Event"), then, promptly following the occurrence of such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the ~~then current~~ Purchase Price in effect immediately prior to the occurrence of such Section 11(a)(ii) Event in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one~~ one-~~hundredths~~ thousandths of a share of Series G Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the ~~result~~ quotient obtained by (x) multiplying the ~~then-current~~ Purchase Price in effect immediately prior to the occurrence of such Section 11(a)(ii) Event by the ~~then-~~number of ~~one~~ one-~~hundredths~~ thousandths of a share of Series G Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to ~~the first occurrence of a Section 11(a)(ii) Event~~such occurrence, and (y) by dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share on~~ Stock as of the date of such ~~first~~ occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that either (x) the number of ~~Preferred Shares which are~~ authorized ~~by the Company’s Articles~~ shares of ~~Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights~~ Common Stock are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a) or (y) the Company shall not have obtained any necessary regulatory approval to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), then the Company shall take all such action as may be necessary to authorize additional shares of Common Stock for issuance upon exercise of the Rights or to obtain such approval, as the case may be. However, in the event the Company shall, after good faith effort, be unable to authorize such additional shares of Common Stock (or to obtain such necessary regulatory approval, as the case may be), the Company ~~shall:~~ shall (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common Shares or~~ other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”))Company, (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30 day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such 30 day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such stockholder approval for such authorization of additional shares, to take any action to obtain any required regulatory approval and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value~~ Current Market Price per share of the Common Stock as ~~one one-hundredth~~ of ~~a Preferred Share on~~ such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Medsource Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm’s-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $10,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company’s Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company’s Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company’s (or its Subsidiaries’) past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the members of the Board of Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s ~~Articles~~ Certificate of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ~~(2)~~ the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of in office at the ~~Company~~ time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, hereinafter referred to as “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of in office at the ~~Company based upon~~ time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~. For purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~however, that in~~ the ~~event that the~~ “current market ~~price of a~~ price” per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the daily closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.pri

Appears in 1 contract

Sources: Rights Agreement (Consol Energy Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number ~~and kind~~ of shares of Common Stock covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In Notwithstanding anything in this Agreement to the ~~event the Company shall~~ contrary, if at any time after the date ~~of this Agreement~~ hereof and prior to the Distribution Date the Company shall (A) ~~declare~~ pay a dividend on the ~~Preferred Shares~~ outstanding shares of Common Stock payable in ~~Preferred Shares~~shares of Common Stock, (B) subdivide the outstanding ~~Preferred Shares,~~ Common Stock into a larger number of shares or (C) combine the outstanding ~~Preferred Shares~~ Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number ~~and kind~~ of ~~Preferred Shares~~ Rights associated with each share of Common Stock then outstanding, or ~~capital stock,~~ issued or delivered thereafter as ~~the case may be, issuable on such date~~contemplated by Section 3(c), shall be proportionately adjusted so that the ~~holder~~ number of Rights thereafter associated with each share of Common Stock following any ~~Right exercised after~~ such ~~time~~ event shall ~~be entitled to receive, upon payment~~ equal the result obtained by multiplying the number of ~~the Purchase Price then in effect, the aggregate number and kind~~ Rights associated with each share of ~~Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised~~ Common Stock immediately prior to such ~~date and at~~ event by a ~~time when~~ fraction the ~~Preferred Share transfer books~~ numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the ~~Company were open, he would have owned upon such exercise~~ event and ~~been entitled to receive by virtue~~ the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereofevent. (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur in the event~~ 24 hereof, if any Person, alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date of this Agreement, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that then each holder of a Right shall (except as otherwise provided ~~below and in~~ herein, including Section ~~7(e~~7(d)) ~~hereof) shall~~ thereafter ~~have the right~~ be entitled to receive, upon exercise thereof at the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable effect immediately prior to the first occurrence of a Section 11(a)(ii) Event, such number of duly authorized, validly issued, fully paid and nonassessable shares of Common Stock of the Company (ysuch number of shares being referred to herein as the “Adjustment Shares”) ~~dividing that~~ as shall be equal to the result obtained by dividing (A) the product obtained by multiplying (~~which, following~~ 1) the Purchase Price in effect immediately prior to the first occurrence of a Section 11(a)(ii) Event by (2) the number of halves of one share of Common Stock for which a Right was exercisable immediately prior to such first ~~occurrence, shall~~ occurrence (such product being thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by by (B) 50% of the current market price per share (determined pursuant to Section ~~11(d~~11(d)(i)) ~~hereof) per~~ of Common ~~Share~~ Stock on the date of such first ~~occurrence (such number~~ occurrence; provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of ~~shares~~Section 13, then only the ~~“Adjustment Shares”~~provisions of Section 13 shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) ~~In the event that~~ If the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance ~~for purposes~~ other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with ~~the foregoing subparagraph (ii) of this~~ Section ~~11(a~~11(a)(ii), the ~~Company~~ Company, with respect to each Right and to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date of this Agreement to which it is a party, shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each ~~Right~~Right (other than Rights that have become void pursuant to Section 7(d) hereof or exchanged pursuant to Section 24 hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) ~~cash, (2)~~ a reduction in the Purchase ~~Price~~Price payable with respect to such Right, (2) shares of Common Stock of the Company (to the extent available), (3) ~~Common Shares or other~~ equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors ~~of the Company~~ has deemed to have the same value as ~~one one-hundredth~~ the shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, hereinafter referred to as “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) cash, (6) other ~~assets~~assets (including, without limitation, securities of a Subsidiary of the Company) or (67) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the Company shall not have made adequate provision to ~~deliver value~~ substitute for the Adjustment Shares pursuant to clause (B) above within ~~thirty (30)~~ 30 calendar days following the later of ~~(x)~~ the first occurrence of a Section 11(a)(ii) Event and ~~(y)~~ the first date ~~on which~~ that the ~~Company’s~~ right ~~of redemption~~ to redeem the Rights pursuant to Section ~~23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)~~23 shall expire, then the Company shall be obligated to deliver, to the extent necessary and permitted by applicable law and any agreements or instruments in effect on the date of this Agreement to which it is a party, upon the surrender for exercise of a Right and without requiring payment of any portion of the Purchase Price, ~~Preferred Shares~~ (1) shares of Common Stock (to the extent available) and then (2) (to the extent available) Common Stock Equivalents and then, if necessary, ~~cash~~(3) other equity or debt securities of the Company, ~~which shares and/or~~ cash ~~have~~ or other assets or any combination of the foregoing, in any case having an aggregate value (as determined by the Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors) equal to the Spread. If the Board of Directors shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-calendar-day period set forth above (such period, as it may be extended, being referred to herein as the “Substitution Period”) may be extended to the extent necessary, but not more than 90 calendar days following the first occurrence of a Section 11(a)(ii) Event, in order that the Company may seek stockholder approval for the authorization of such additional shares. To the extent that the Company determines that some action is to be taken pursuant to the first and/or second sentence of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(d), that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form and value of any consideration to be delivered as referred to in such first and/or second sentence. If any such suspension occurs, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price per share of Common ~~Share~~ Stock (as determined pursuant to Section 11(d~~) hereof~~)) on the later of the date of the first occurrence of a Section 11(a)(ii) ~~Trigger Date~~ Event and the first date that the right to redeem the Rights pursuant to Section 23 shall expire; the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date~~. (iv) In lieu~~ ; and the value of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price other securities or assets shall be determined pursuant to ~~this subparagraph (iv~~Section 11(d)(ii)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) ~~In case~~ If the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ Common Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) ~~Preferred Shares~~ Common Stock (or ~~shares~~ securities having the same rights, privileges and preferences as the ~~Preferred Shares~~ shares of Common Stock (“equivalent ~~preferred shares~~common stock”)) or securities convertible into ~~Preferred Shares~~ or exercisable for Common Stock or equivalent ~~preferred shares~~ common stock at a price per ~~Preferred Share or per~~ share of ~~equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share~~ Common Stock or equivalent ~~preferred share~~common stock (in each case, taking account of any conversion or exercise price) less than the current market price (as determined pursuant to Section ~~11(d)(ii) hereof~~11(d)) per share of ~~Preferred Shares~~ Common Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such ~~record~~ date by a fraction, the numerator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record date, plus the number of ~~Preferred Shares~~ shares of Common Stock which the aggregate ~~offering~~ price (taking account of any conversion or exercise price) of the total number of ~~Preferred Shares~~ shares of Common Stock (and/or equivalent ~~preferred shares~~ common stock) so to be offered ~~(and/or the aggregate initial conversion price of the convertible securities so to be offered)~~ would purchase at such current market ~~price,~~ price and the denominator of which shall be the number of ~~Preferred Shares~~ shares of Common Stock outstanding on such record ~~date,~~ date plus the number of additional ~~Preferred Shares~~ shares of Common Stock (and/or equivalent ~~preferred shares to be offered for subscription or purchase (or into which the convertible securities~~ common stock) so to be ~~offered are initially convertible)~~offered; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. ~~In case~~ If such subscription price may be paid by delivery of consideration part or all of which ~~may be~~ is in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of ~~Directors of the Company~~Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be ~~binding on the Rights Agent and the holders~~ conclusive for all purposes. Shares of ~~the Rights. Preferred Shares~~ Common Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and ~~in the event that~~ if such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) ~~In case~~ If the Company shall fix a record date for the making of a distribution to all holders of ~~Preferred Shares~~ Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, equity securities other than Common Stock, assets, cash (other than a regular ~~quarterly~~ periodic cash dividend out of the earnings or retained earnings of the Company~~), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares~~) or ~~subscription rights~~ rights, options or warrants (excluding those referred to in Section 11(b~~) hereof~~)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d~~) hereof~~)) per share of ~~Preferred Shares~~ the Common Stock on such record date, less the ~~fair market~~ value (as determined ~~in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent~~pursuant to Section 11(d)(ii)) of ~~the portion~~ such evidences of ~~the~~ indebtedness, equity securities, cash, ~~assets~~ assets, rights, options or ~~evidences of indebtedness~~ warrants so to be distributed ~~or of such subscription rights or warrants applicable~~ with respect to a one share of ~~Preferred Share~~ Common Stock and the denominator of which shall be such current market price ~~(as determined pursuant to Section 11(d) hereof)~~ per share of ~~Preferred Shares~~Common Stock; provided, however, that in no event may the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. Such ~~adjustments~~ adjustment shall be made successively whenever such a ~~record-~~record date is fixed, ~~and in the event that~~ and, if such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would ~~have been~~ then be in effect if such record date had not been fixed. (i) For the purpose of any computation ~~hereunder~~hereunder other than computations made pursuant to Sections 11(a)(iii) or 14, the “current ~~per share~~ market price” per share of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date; for purposes of computations made pursuant to Section 11(a)(iii), the “current market price” per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; and for purposes of computations made pursuant to Section 14, the “current market price” per share of Common Stock for any Trading Day shall be deemed to be the closing price per share of Common Stock for such Trading Day; provided, however, that ~~in the event that~~ if the current market price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities exercisable for or convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to the expiration of the requisite 30 Trading ~~Days~~ Day or 10 Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and in each such ~~announcement~~ case, the “current market price” shall ~~have caused the closing prices used~~ be properly adjusted to ~~determine~~ take into account ex-dividend trading or to reflect the current ~~per share~~ market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such dateper unit of equivalent common stock. The closing price for each ~~day~~ Trading Day shall be the last sale price, regular way, or, ~~in case~~ if no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (“~~Nasdaq~~NASDAQ”), ) or such other system then in use or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board of ~~Directors of the Company~~Directors. If on any such date no ~~market-~~market maker is making a market in the Common ~~Shares~~Stock, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors ~~of the Company~~ shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common ~~Shares are~~ Stock is not publicly held or not so listed or traded, or is not the subject of available bid and asked quotes, the “current ~~per share~~ market price” ~~shall mean~~ per share means the fair value per share as determined in good faith by the Board of ~~Directors of the Company~~Directors, ~~whose~~ which determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes. For the purposes of this Agreement, the current market price of one half of one share of Common Stock will be equal to the current market price of one share of Common Stock divided by two. (ii) For the purpose of any computation hereunder, the value of any securities or assets other than Common Stock or equivalent Common Stock shall be the fair value as determined in good faith by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Purchase Price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a share of Common Stock. Notwithstanding the first sentence of this Section 11(e), any ad

Appears in 1 contract

Sources: Rights Agreement (Lubys Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.. (a) (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event shall be deemed to occur in the event~~ any Person~~, alone or together with its Affiliates and Associates, shall~~, at any time after the Rights Dividend Declaration Date, shall become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is an acquisition of shares of Common Stock pursuant to a tender offer or exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to stockholders (taking into account all factors which such members of the Board deem relevant, including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of the Company and its stockholders (a "Qualifying Offer"), or (B) the Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, has, at any time after this Agreement has been filed with the Securities and Exchange Commission as an exhibit to a filing under the Exchange Act, become the Beneficial Owner of a number of shares of Common Stock which the Board of Directors of the Company determines to be substantial (which number of shares shall in no event represent less than 10% of the outstanding shares of Common Stock) and a determination by the Board of Directors of the Company, after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate that (a) such Beneficial Ownership by such Person is intended to cause the Company to repurchase the shares of Common Stock beneficially owned by such Person or to cause pressure on the Company to take action or enter into a transaction or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company and its stockholders would not be served by taking such action or entering into such transaction or series of transactions at that time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company's ability to maintain its competitive position) on the business or prospects of the Company to the detriment of the Company's stockholders, then, promptly following the ~~first~~ occurrence of a any event described in Section ~~11(a)(ii~~11(a)(ii)(A) ~~Event~~or (B) hereof, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise ~~thereof~~ thereof, at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section ~~11(a)(ii)~~ 11 Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights~~ Rights, are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, subject to Section 7(e) hereof, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board of Directors of the Company has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares or units of shares of preferred ~~shares, “preferred share equivalents”~~stock are referred to herein as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section ~~11(a)(ii)~~ 11 Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action should be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek stockholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Inland Steel Industries Inc /De/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person~~Person (other than an Exempted Person or the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a ~~transaction set forth in~~ Section ~~13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii)~~ 13 Event, then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof on or after the Distribution Date at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that the Board of ~~Directors~~ Directors, with the concurrence of at least a majority of the ~~Company~~ Continuing Directors in office at the time, has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of ~~Directors~~ Directors, with the concurrence of at least a majority of the ~~Company based upon~~ Continuing Directors in office at the time, after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors, with the concurrence of at least a majority of the Continuing Directors in office at the time, shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, with the concurrence of at least a majority of the Continuing Directors in office at the time, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, with the concurrence of at least a majority of the Continuing Directors in office at the time, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent." per

Appears in 1 contract

Sources: Rights Agreement (SPS Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) ~~In the event~~ Except as otherwise provided in this Section 11(a) and in Section 7(e), if the Company ~~shall~~ at any time after the date of this Agreement (A) ~~declare~~ declares a dividend on the Preferred Shares payable in Preferred Shares, (B) ~~subdivide~~ subdivides the outstanding Preferred Shares, (C) ~~combine~~ combines the outstanding Preferred Shares into a smaller number of shares, or (D) ~~issue~~ issues any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), ~~except as otherwise provided in this Section 11(a) and Section 7(e) hereof,~~ then the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ combination, or reclassification, as the case may be, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, ~~shall~~ each will be proportionately adjusted so that the holder of any Right duly exercised after such applicable time ~~shall~~ will be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be, which~~stock that, if such Right had been exercised immediately prior to such ~~date~~ applicable time and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, ~~combination~~ combination, or reclassification; PROVIDED, HOWEVER, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) ~~shall~~ will be in addition to, and ~~shall~~ will be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur in the event~~ 25 of this Agreement, if any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such~~ Person ~~to become~~ becomes an Acquiring Person ~~is a transaction set forth~~ then, and in ~~Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event~~each such case, proper provision ~~shall~~ will be made promptly so ~~that~~ that, following the Distribution Date, each holder of a ~~Right (~~Right, except as provided ~~below and~~ in Section 7(e) hereof~~) shall thereafter~~ , will have ~~the~~ a right to receive, upon exercise thereof at a price equal to the then current Purchase Price ~~in accordance with~~ multiplied by the ~~terms of this Agreement, in lieu of such~~ number of one one-hundredths of a Preferred Share ~~covered by each~~ for which a Right ~~immediately prior to~~ is then exercisable, in accordance with the ~~Section 11(a)(ii) event~~terms of this Agreement and in lieu of Preferred Shares, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as ~~shall~~ is equal to the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (~~which,~~ which following such first ~~occurrence, shall~~ occurrence will thereafter be referred to as the “~~Purchase Price~~PURCHASE PRICE” for each Right and for all purposes of this Agreement) by 50% of the then current per share market price of the Company’s Common Shares (determined pursuant to Section 11(d) hereof) ~~per Common Share~~ on the date of such first occurrence (such number of shares, the “~~Adjustment Shares~~ADJUSTMENT SHARES”); PROVIDED, HOWEVER, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof will apply and no adjustment will be made pursuant to this Section 11(a)(ii). If any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. (iii) ~~In the event that~~ If the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation (as amended and in effect as of the relevant time) but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights~~ Rights, are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company ~~shall: (A) determine the excess of (1) the value~~ shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exercise of the ~~Adjustment Shares~~ Rights. If the Company shall, after good faith effort, be unable to take all such action as may be necessary to authorize such additional Common Shares, the Company shall then substitute, for each Common Share that would otherwise be issuable upon ~~the~~ exercise of a ~~Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each~~ Right, ~~make adequate provision to substitute for the Adjustment Shares, upon payment~~ a number of ~~the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common~~ Preferred Shares or ~~other equity securities~~ fraction thereof such that the current per share market price of ~~the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as~~ one ~~one-hundredth of a~~ Preferred Share (multiplied by such ~~preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets,~~ number or ~~(6) any combination of the foregoing, having an aggregate value~~ fraction is equal to the ~~Current Value, where such aggregate value has been determined by the Board~~ current per share market price of ~~Directors~~ one Common Share as of the ~~Company based upon the advice~~ date of ~~one or more investment or financial advisors selected by the Board~~ issuance of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, such Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Companyfraction thereof. (b) ~~In case~~ If the Company ~~shall fix~~ fixes a record date for the issuance of rights, ~~options~~ options, or warrants to all holders of Preferred Shares entitling them ~~to subscribe for or purchase~~ (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares having the same or more favorable rights, ~~privileges~~ privileges, and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or ~~per share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the then current per share market price of the Preferred Shares (as ~~determined pursuant to~~ defined in Section ~~11(d)(ii~~11(d)) ~~hereof) per share of Preferred Shares~~ on such record date, the Purchase Price to be in effect after such record date ~~shall~~ will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall~~ will be the number of Preferred Shares outstanding on such record ~~date,~~ date plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market ~~price,~~ price and the denominator of which ~~shall~~ will be the number of Preferred Shares outstanding on such record ~~date,~~ date plus the number of additional Preferred Shares and/or equivalent ~~preferred shares~~ Preferred Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); PROVIDED, HOWEVER, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid ~~by delivery of~~ in a consideration part or all of which ~~may~~ will be in a form other than cash, the value of such consideration ~~shall~~ will be as determined in good faith by the Board of Directors of the Company, whose determination ~~shall~~ will be described in a statement filed with the Rights ~~Agent and shall be binding on the Rights Agent and the holders of the Rights~~Agent. Preferred Shares owned by or held for the account of the Company ~~shall~~ will not be deemed outstanding for the purpose of any such computation. Such adjustment ~~shall~~ will be made successively whenever such a record date is fixed, ; and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price ~~shall~~ will be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) ~~In case~~ If the Company ~~shall fix~~ fixes a record date for the making of a distribution to all holders of the Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of cash, evidences of indebtedness, ~~cash (~~or other ~~than a regular quarterly cash dividend out of the earnings or retained earnings of the Company),~~ assets (other than a dividend payable in ~~Preferred Shares, but including any dividend payable in shares other than~~ Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date ~~shall~~ will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall~~ will be the then current per share market price ~~(as determined pursuant to Section 11(d) hereof) per share~~ of the Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination ~~shall~~ will be described in a statement filed with the Rights Agent) of the portion of the cash, ~~assets or~~ evidences of ~~indebtedness~~ indebtedness, or other assets so to be distributed or of such subscription rights or warrants applicable to ~~a share of~~ one Preferred Share and the denominator of which ~~shall~~ will be such current per share market price ~~(as determined pursuant to Section 11(d) hereof) per share~~ of the Preferred Shares; PROVIDED, HOWEVER, that in no event will the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one Right. Such adjustments ~~shall~~ will be made successively whenever such a ~~record-~~record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price ~~shall~~ will again be adjusted to be the Purchase Price ~~which~~ that would ~~have been~~ then be in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of any Security (a “SECURITY” for the ~~Common Shares~~ purpose of this Section 11(d)(i)) on any date ~~shall~~ will be deemed to be the average of the daily closing prices per share of ~~the Common Shares~~ such Security for the 30 consecutive Trading Days (as hereinafter defined) immediately prior to such date; ~~provided~~PROVIDED, however, that in the event that the current per share market price of ~~a Common Share~~ the Security is determined during a period following the announcement by the ~~Company~~ issuer of such Security of (A) a dividend or distribution on ~~the Common Shares,~~ such Security payable in ~~Common Shares~~ shares of such Security or securities convertible into ~~Common Shares~~such shares, or (B) any subdivision, ~~combination~~ combination, or reclassification of ~~the Common Shares,~~ such Security and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, ~~combination~~ combination, or reclassification, then, and in each such ~~announcement shall have caused the closing prices used to determine~~ case, the current per share market price ~~on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall~~ will be appropriately adjusted to ~~make it fully comparable with~~ reflect the ~~closing~~ current market price on per share equivalent of such ~~date~~Security. The closing price for each day ~~shall~~ will be the last sale price, regular way, ~~or,~~ or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the National Association of Securities Dealers, Inc. (the “NASDAQ”) National Market System, or if the Security is not listed or admitted to trading on the NASDAQ, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the ~~Common Shares are~~ Security is listed or admitted to ~~trading or~~trading, or if ~~Common Shares are~~ the Security is not listed or admitted to trading on any national securities exchange, the last quoted ~~price or~~price, or if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~NASDAQ Automated Quotations System or such other system then in use, ~~Inc. (“Nasdaq”), or,~~ or if on any such date ~~Common Shares are~~ the Security is not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in ~~Common Shares,~~ the Security selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “~~Trading Day~~TRADING DAY” ~~shall mean~~ means a day on which the principal national securities exchange on which ~~Common Shares are~~ the Security is listed or admitted to trading is open for the transaction of business or, if ~~Common Shares are~~ the Security is not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Cubist Pharmaceuticals Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of ~~shares~~ Preferred Shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares,~~ Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) ~~and~~ (including, without limitation, the second paragraph of Section ~~7(e) hereof~~11(a)(ii)), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the aggregate adjusted Purchase Price then in ~~effect~~effect necessary to exercise a Right in full, the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and the first paragraph of Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become~~ Person becomes an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided ~~below and~~ in the following paragraph of this Section ~~7(e) hereof~~11(a)(ii)) shall thereafter have ~~the~~ a right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price multiplied by the ~~then-~~number of one one-hundredths of a Preferred Share for which a Right ~~was exercisable immediately prior to~~ is then exercisable, in accordance with the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes terms of this ~~Agreement) by 50%~~ Agreement and in lieu of Preferred Shares, such number of Common Shares of the ~~current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence~~ Company (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the ~~“Section 11(a)(ii~~"Adjustment Shares") ~~Trigger Date”),~~ as shall equal the result obtained by (x) multiplying the then current Purchase Price by the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value number of one one-~~hundredth~~ hundredths of a Preferred Share ~~shall be deemed to be~~ for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market price ~~per~~ of the Company's Common ~~Share~~ Shares (as determined pursuant to Section 11(d) hereof) on the ~~Section 11(a)(ii) Trigger Date~~ date of the occurrence of such event. In the event that any Person shall become an Acquiring Person and the ~~value of any “preferred share equivalent”~~ Rights shall then be ~~deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a)~~outstanding, the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not take any action which would eliminate or diminish the benefits intended to be ~~deemed outstanding for~~ afforded by the ~~purpose~~ Rights. Notwithstanding anything in this Agreement to the contrary, from and after the occurrence of a Person becoming an Acquiring Person, any Rights that are or were acquired or beneficially owned by any Acquiring Person (or any Associate or Affiliate of such ~~computation. Such adjustment~~ Acquiring Person) shall be ~~made successively whenever such a record date is fixed~~null and void and nontransferable, and ~~in the event that~~ any holder of such ~~rights or warrants are not so issued, the Purchase Price~~ Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined issued pursuant to Section ~~11(d) hereof) per share of Preferred Shares on such record date, less~~ 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the ~~fair market value (as determined in good faith by the Board of Directors of the Company, whose determination~~ preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be ~~described in a statement filed with~~ issued at any time upon the ~~Rights Agent)~~ transfer of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.any

Appears in 1 contract

Sources: Rights Agreement (Martin Industries Inc /De/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer, share exchange or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the Continuing Directors, after receiving advice from one or more nationally recognized investment banking firms, to be in the best interests of the Company and its stockholders and after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value (a "Qualifying Offer"), or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed ~~to have~~ (based, among other things, on the ~~same value as one one-hundredth~~ dividend and liquidation rights of ~~a Preferred Share (~~such preferred shares) to have substantially the same economic value as Common Shares (such securities, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and ~~prior~~ for purposes of computations made pursuant to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such daySection 11(a)(iii) hereof, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent."cu

Appears in 1 contract

Sources: Rights Agreement (Players International Inc /Nv/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares or other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.: (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ outstanding Common Shares payable in ~~Preferred~~ Common Shares, ; (B) subdivide or split the outstanding ~~Preferred~~ Common Shares, (C) combine or consolidate the outstanding ~~Preferred~~ Common Shares into a smaller number of ~~shares~~shares or effect a reverse stock split of the outstanding Common Shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Common Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and in Section 7(e~~) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ split, combination, consolidation or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Company's transfer books of for the ~~Company~~ Common Shares were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, ~~combination~~ split, combination, consolidation or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) A Subject to Section ~~11(a)(ii~~24 of this Agreement, in the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Stock of the Company shall remain outstanding and not changed into or exchanged for stock or other securities of any other Person or the Company or cash or any other property, (2) shall, in one or more transactions, transfer any assets to ~~occur~~ the Company in exchange (in whole or in part) for shares of any equity security of the Company or any of its Subsidiaries or for securities exercisable for or convertible into shares of any equity security of the Company or any of its Subsidiaries or otherwise obtain from the Company, with or without consideration, any additional shares of any equity security of the Company or securities exercisable for or convertible into shares of any equity security of the Company or any of its Subsidiaries (other than as part of a pro rata distribution to all holders of Common Stock), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose (in one or more transactions), to, from or with, as the case may be, the Company or any of its Subsidiaries, assets on terms and conditions less favorable to the Company than the Company would be able to obtain in arms' length negotiation with an unaffiliated third Person, (4) shall engage in any transaction with the Company involving the sale, purchase, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), other than incidental to the lines of business currently engaged in as of the date hereof by the Company and such Acquiring Person, or Associate or Affiliate, of assets having an aggregate fair market value of more than $2,000,000, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder), of any loans other than in the ~~event~~ ordinary course of business), advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) Any Person (other than an Exempt Person~~, alone or together with its Affiliates and Associates,~~ ) shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a), or (C) ~~hereof. Promptly~~ during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions (whether or not with or into or otherwise involving an Acquiring Person) which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, and in each such case, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e~~) hereof~~)) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by ten times the number of tenths of a Common Share for which a Right is then exercisable, in accordance with the terms of this Agreement, in lieu of ~~such~~ the number of ~~one~~ one-~~hundredths of a Preferred Share covered by each~~ tenth Common Shares for which such Right was exercisable immediately prior to the occurrence of such Section 11(a)(ii) ~~event~~Event, such number of ~~one one-hundredths of a Preferred Share~~ whole Common Shares as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by ten times the ~~then-~~number of ~~one one-hundredths~~ tenths of a ~~Preferred~~ Common Share for which a such Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right ~~and~~ for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price per Common Share (determined pursuant to Section 11(d) ~~hereof) per Common Share~~ on the date of such first occurrence (such number of ~~shares~~whole Common Shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). The Company shall not enter into any transaction of the kind listed in this Section 11(a)(ii) if at the time of such transaction there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which as a result of the consummation of such transaction, would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights. (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of all of the exercisable Rights in accordance with ~~the foregoing subparagraph (ii) of this~~ Section ~~11(a~~11(a)(ii), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or and/or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which the Board~~ of ~~Directors~~ preferred stock of the Company ~~has deemed to have~~ with rights, privileges and other terms substantially the same ~~value~~ as ~~one one-hundredth of a Preferred Share~~ the Common Shares (such shares of preferred ~~shares, “preferred share equivalents”~~stock are referred to herein as "Equivalent Preferred Stock")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the ~~foregoing~~foregoing (whichever substituted, the "Substitute Consideration"), having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ at least a majority of the ~~Company~~ Outside Directors based upon the advice of ~~one or more~~ an investment ~~or financial advisors~~ banking firm selected by ~~the Board of Directors~~ at least a majority of the ~~Company~~Outside Directors; provided, however, if the Company shall not have made adequate provision to deliver ~~value~~ substitute consideration pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the ~~first~~ date of the occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent ~~available)~~ available and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If at least a majority of the Outside Directors shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (xx) shall provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights, and (yy) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of Distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall give notice to the Rights Agent and either advise in writing all shareholders of record as of that date or issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a notice to the Rights Agent and either a written notice to all shareholders of record or a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), (xxx) the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall be ~~deemed to be~~ the ~~current market price per Common Share~~ Current Market Price (as determined pursuant to Section 11(d)) ~~hereof)~~ per Common Share on the Section 11(a)(ii) Trigger ~~Date~~ Date, and (yyy) the value of any ~~“preferred share equivalent”~~ "Equivalent Preferred Stock" shall be deemed to have the same value as ~~one one-hundredth of~~ a ~~Preferred~~ Common Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred~~ Common Shares entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) ~~Preferred~~ Common Shares (~~or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”))~~ or securities convertible into ~~Preferred Shares or equivalent preferred shares~~ Common Shares) at a price per ~~Preferred~~ Common Share ~~or per share of equivalent preferred shares~~ (or having a conversion price per ~~share~~Common Share, if a security convertible into ~~Preferred Share or equivalent preferred share~~Common Shares) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii) hereof~~11(d)) per ~~share of Preferred Shares~~ Common Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred~~ Common Shares outstanding on such record date, plus the number of ~~Preferred~~ Common Shares which the aggregate offering price of the total number of ~~Preferred~~ Common Shares ~~and/or equivalent preferred shares~~ so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would ~~purchase~~ purchase, at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of ~~Preferred~~ Common Shares outstanding on such record date, plus the number of additional ~~Preferred~~ Common Shares ~~and/or equivalent preferred shares~~ to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by ~~the Board of Directors~~ at least a majority of the ~~Company~~Outside Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Common Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such ~~adjustment~~ adjustments shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred~~ Common Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or a dividend payable in ~~Preferred~~ Common Shares, but including any dividend payable in ~~shares~~ stock other than ~~Preferred~~ Common Shares) or subscription rights or warrants (excluding those referred to in Section 11(b~~) hereof~~)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d~~) hereof~~)) per ~~share of Preferred Shares~~ Common Share on such record date, less the fair market value (as determined in good faith by ~~the Board of Directors~~ at least a majority of the ~~Company~~Outside Directors, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed on, or of such subscription rights or warrants applicable ~~to a share of Preferred Share~~ to, one Common Share, and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares~~Current Market Price. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, ; and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (id) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the ~~“current~~ "Current Market Price" per ~~share market price” of the~~ Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common Shares for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii), ~~that in~~ the ~~event that the current market price of a~~ "Current Market Price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the daily closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the prices per share of such Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.10 consecutive Trading Days immediately following such date; provided,

Appears in 1 contract

Sources: Rights Agreement (Synovis Life Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration Date~~Merger Effective Time, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip- In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the “Current Market Price used to determine the number of Adjustment Shares) (the "Current Value”") over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock (including, without limitation, the Preferred Stock) that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock are herein referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the ~~“Section 11(a)(ii)~~ "Flip-In Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip- In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.such

Appears in 1 contract

Sources: Rights Agreement (Devon Delaware Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Common Shares payable in ~~Preferred~~ Common Shares, (B) subdivide the outstanding ~~Preferred~~ Common Shares, (C) combine the outstanding ~~Preferred~~ Common Shares into a smaller number of ~~shares,~~ Common Shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Common Shares (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Common Shares transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon exercise of one Right. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall, for a period of 60 days after the later of the occurrence of any such event or the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement, such number of Common Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of Common Shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and dividing that product by (y) 50% of the then current per share market price of the Corporation's Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as the "Adjustment Shares"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that there shall not be sufficient treasury shares or authorized but unissued (and un- reserved) Common Shares to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter ~~have~~ represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) ~~multiplying the then-current Purchase Price by the then-~~a number of ~~one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior~~ (or fractions of) Common Shares (up to the ~~first occurrence~~ maximum number of ~~a Section 11(a)(ii~~Common Shares which may permissibly be issued) ~~Event,~~ and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such a number of ~~shares, the “Adjustment Shares”).~~ (~~iii~~or fractions of) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the ~~Company~~ Corporation (~~including~~or, ~~without limitation~~in the discretion of the Board of Directors of the Corporation, ~~preferred shares, or units of preferred shares,~~ debt) which the Board of Directors of the ~~Company~~ Corporation has ~~deemed~~ determined to have the same aggregate current market value (determined pursuant to Section 11(d)(i) and (ii) hereof, to the extent applicable) as one ~~one-hundredth of a Preferred~~ Common Share (such ~~preferred shares, “preferred share equivalents”)~~number of (or fractions of) Common Shares (or other equity securities or debt of the Corporation) being referred to as a "capital stock equivalent"), ~~(4) debt securities of~~ equal in the ~~Company, (5) other assets, or (6) any combination of the foregoing, having an~~ aggregate ~~value equal~~ to the ~~Current Value, where such aggregate value has been determined by the Board~~ number of ~~Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company~~Adjustment Shares; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)sufficient Common Shares and/or capital stock equivalents are unavailable, then the ~~Company shall be obligated to deliver~~Corporation shall, ~~upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (~~to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined permitted by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.applicable

Appears in 1 contract

Sources: Rights Agreement (Hc Investments Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock or other capital stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) issue any ~~shares~~ share of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in ~~this~~ Section ~~11(a~~11(a)(ii) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock (or other capital stock, as the case may be) transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior ~~to,~~ to any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan or employee stock plan of the Company or of any Subsidiary of the Company, any dividend reinvestment plan of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date hereof, become an Acquiring Person, unless the event causing such ~~Person~~ threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is an acquisition of Common Stock pursuant to a tender offer or exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to stockholders (taking into account all factors which such members of the Board deem relevant including, without limitation, the long-term prospects and value of the Company and the prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of (1) the Company and its stockholders (including the possibility that these interests may best be served by the continued independence of the Company), (2) the Company's employees, suppliers, creditors, customers and (3) the community in which the Company operates, then, promptly following the first occurrence of a the event described in Section 11(a)(ii) ~~Event~~hereof, proper provision shall be made so that each holder of a Right (except as provided ~~below~~ in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock Fractions, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred ~~Share~~ Stock Fractions for which a Right was exercisable by such holder immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (~~which~~such product, following such first occurrence, shall thereafter be referred to as the “Purchase ~~Price”~~ Price for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of ~~shares,~~ shares of Common Stock is herein called the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized ~~by the Company’s Articles of Incorporation~~ but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread~~”),~~ ") and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or ~~units of preferred shares~~Preferred Stock Fractions), which the Board of Directors of the Company has deemed to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such ~~preferred~~ shares, ~~“preferred share~~ "common stock equivalents”)"), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the ~~later~~ first occurrence of (x) ~~the first occurrence of~~ a Section 11(a)(ii) Event ~~and~~ or (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended by resolution of the Board of Directors of the Company to the extent necessary, but not more than ninety (90) days following the first occurrence of a Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares, to take any action to obtain any required regulatory approval and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ common stock equivalents shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) ~~In lieu~~ If the rules of ~~issuing Preferred Shares~~ the national securities exchange, registered as such pursuant to Section 6 of the Exchange Act, or of the national securities association, registered as such pursuant to Section 15A of the Exchange Act, on which the shares of Common Stock are principally traded would prohibit such exchange or association from listing or continuing to list, or from authorizing for or continuing quotation and/or transaction reporting through an inter-dealer quotation system, the shares of Common Stock or other equity securities of the Company if the Rights were to be exercised for shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a)) because such issuance would nullify, restrict or disparately reduce the per share voting rights of holders of shares of Common Stock or for any other reason, the Company ~~may~~ shall: (A) determine the Spread and (B) with respect to each Right~~, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights~~, make adequate provision to substitute for the Adjustment Shares, ~~(x)~~ upon ~~the surrender for exercise of a Right and~~ payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the applicable Purchase Price, (1) cash, (2) ~~Preferred Shares, Common Shares or other~~ equity securities of the ~~Company (~~Company, including, without limitation, ~~preferred~~ "common stock equivalents", other than securities which would have the effect of nullifying, restricting or disparately reducing the per share ~~equivalents)~~voting rights of holders of shares of Common Stock or otherwise cause the prohibition described above, (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the ~~Spread~~ Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the Section 11(a)(ii) Trigger Date, then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, cash having an aggregate value equal to the Spread. To the extent that the Company determines that an action needs to be taken pursuant to the first sentence of this Section 11(a)(iv), the Company (x) shall provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights, but not longer than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iv), the value of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Common Stock on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent" shall be deemed to have the same value as the Common Stock on such date. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock, (or shares having the same rights, privileges and preferences as the Preferred ~~Shares~~ Stock (“"equivalent ~~preferred shares”~~Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent ~~preferred shares~~ Preferred Stock at a price per ~~Preferred Share or per~~ share of Preferred Stock or equivalent ~~preferred shares~~ Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent ~~preferred share~~Preferred Stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent ~~preferred shares~~ Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market ~~price,~~ price and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent ~~preferred shares~~ Preferred Stock to be offered for subscription or purchase (or ~~into~~ onto which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, ; and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend paid out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ capital stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current market price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing ~~prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market~~ price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.Stock for

Appears in 1 contract

Sources: Rights Agreement (Goldfield Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date,~~ Person shall become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the “Current Market Price used to determine the number of Adjustment Shares) (the "Current Value”") over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock (including, without limitation, the Preferred Stock) that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock are herein referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the ~~“Section 11(a)(ii)~~ "Flip-In Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a Common ~~Share~~ Stock is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on such Common Stock other than a regular quarterly cash dividend or the ~~Common Shares, payable in Common Shares or securities convertible into Common Shares~~dividend of the Rights, or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which If the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or not so listed or traded, ~~“current~~ "Current Market Price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Seven Seas Petroleum Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including - 13 - 14 any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, ~~become~~ becomes an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , or is an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the Board who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (A) at a price that is not inadequate (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (B) otherwise in the best interests of the Company and its stockholders, then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one ~~one~~two-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one ~~one~~two-hundredths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by fifty percent (50% %) of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) - 14 - 15 per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board ~~of Directors of the Company~~ has deemed to have the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as is the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Market Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the ~~value of one one-hundredth of a Preferred Share~~ Company (x) shall ~~be deemed to be the current market price per Common Share (as determined pursuant~~ provide, subject to Section ~~11(d~~7(e) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), ~~the Company may with respect to each Right, if a majority of members of the Board of Directors determine~~ that such action ~~is in the best interests of the Company and not contrary~~ shall apply uniformly to ~~the interests of the holders of~~ all outstanding Rights, ~~make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right~~ and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) ~~upon~~ may suspend the ~~surrender for exercise of a Right and without requiring payment~~ exercisability of the ~~Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities~~ Rights until the expiration of the ~~Company (including, without limitation, preferred share equivalents), (3) debt securities~~ Substitution Period in order to seek such stockholder approval for such authorization of additional shares and/or to decide the ~~Company, (4) other assets or (5)~~ appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company.such (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.to (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ Current Market Price per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (~~“Nasdaq”)~~"NASDAQ") or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on~~ any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.such

Appears in 1 contract

Sources: Rights Agreement (Trenwick Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital ~~stock~~ shares in a reclassification of the Preferred Shares (~~including~~ including, without limitation, any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e~~) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital ~~stock~~shares, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24, in the event any ~~Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become~~ Person becomes an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that then each holder of a Right (except as provided below and in Section 7(e~~) hereof~~)) shall thereafter have the right to receive, upon exercise thereof at a price equal to the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-~~hundredths~~ thousandths of a Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Share, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event,~~ Event and (y) dividing that product (which, following such first ~~occurrence,~~ occurrence shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d~~) hereof~~)) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares which are authorized by the Company’s ~~Articles~~ articles of ~~Incorporation~~ incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights are~~ Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value~~”) over (2) the Purchase Price (such excess, the “Spread~~”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred shares, such as the Preferred Shares, which the Board of Directors of the Company has deemed to have substantially the same value or economic rights as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares or units of preferred shares, “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, the “Substitution Period”). To the extent the Company determines that action should be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect (with prompt notice of such announcements to the Rights Agent). For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d)) ~~hereof)~~ per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to ~~have~~ equal the ~~same value~~ current market price (as ~~one one-hundredth of a Preferred~~ determined pursuant to Section 11(d)) per Common Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of ~~rights~~rights (other than the Rights), options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii) hereof~~11(d)) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such ~~rights~~ rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (~~including~~ including, without limitation, any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular ~~quarterly~~ periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but ~~including~~ including, without limitation, any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b~~) hereof~~)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d~~) hereof~~)) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d~~) hereof~~)) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per such Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days immediately prior to but not including such date, and for purposes of computations made pursuant to Section 11(a)(iii), the “current market price” per Common Share on any date shall be deemed to be the average of the daily closing prices per such Common Share for the ten (10) consecutive Trading Days immediately following but not including such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Shares of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Shares payable in such Common Shares or securities convertible into such Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the “current market price” shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with~~ take into account any trading during the ~~closing price on~~ period prior to such ex-dividend date or record date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market, Inc.~~ the OTC Bulletin Board service (the “~~Nasdaq~~OTCBB”~~), or, if on any~~ ) or such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.other quotation

Appears in 1 contract

Sources: Section 382 Rights Agreement (Pulte Homes Inc/Mi/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a share exchange, consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Subject to the next sentence of this Section 11(a)(ii) ~~Event shall be deemed~~ and to ~~occur~~ Section 23(a) and Section 24 of this Agreement, in the event that any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date, become~~ becomes an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly~~ then, promptly following the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event~~such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Corporation as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section ~~11(a)(ii~~11(a) (ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. If the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13(a) hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the ~~Company’s~~ Corporation's Articles of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the ~~Company~~ Corporation shall: (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the ~~Company~~ Corporation (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board of Directors of the ~~Company~~ Corporation has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock being referred to as "Common Stock Equivalents")), (4) debt securities of the ~~Company~~Corporation, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the ~~Company~~ Corporation based upon the advice of ~~one or more~~ an investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the ~~Company~~Corporation; provided, however, that if the ~~Company~~ Corporation shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the ~~Company’s~~ Corporation's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section ~~11(a)(ii~~11 (a) (ii) Trigger Date”"), then the ~~Company~~ Corporation shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) ), and then, if necessary, such number of shares of Preferred Stock or fractions thereof (to the extent available), and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board of Directors of the Corporation determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Corporation may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the "Substitution Period"). To the extent the Corporation determines that action should be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Corporation (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Corporation shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the ~~Company~~ Corporation shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same ~~rights~~preferences, ~~privileges~~ limitations and ~~preferences~~ relative rights as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such ~~record date~~Record Date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the ~~Company~~Corporation, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the ~~Company~~ Corporation shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the ~~Company~~ Corporation shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a share exchange, consolidation or merger in which the ~~Company~~ Corporation is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend ~~out~~ of the ~~earnings or retained earnings~~ Corporation in compliance with Section 55-6-40 of the ~~Company~~North Carolina Business Corporation Act), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the ~~Company~~Corporation, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on Nasdaq or, if the shares of Common Stock are not listed or admitted to trading on Nasdaq, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. ~~(“Nasdaq”)~~Automated Quotations System or such other system then in use, or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board of ~~Directors of the Company~~Directors. If on any such date no ~~market-~~market maker is making a market in the Common ~~Shares~~Stock, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the ~~Company~~ Corporation shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange or national market system on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or quoted is open for the transaction of business or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading or quoted on any national securities ~~exchange~~exchange or national market system, a Business Day. If the Common ~~Shares are~~ Stock is not publicly held or not so listed or traded, ~~“current~~ Current Market Price per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the ~~Company~~Corporation, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Investors Title Co)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event shall be deemed~~ any Person (other than the Exempt Investors, the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to ~~occur in~~ the ~~event~~ terms of any ~~Person~~such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding, unless the event causing ~~such Person~~ the 20% threshold to ~~become an Acquiring Person~~ be crossed is a transaction set forth in Section 13(a) ~~hereof. Promptly~~ hereof or (B) subject to the requirements of this Section 11(a)(ii), (x) the Board of Directors of the Company shall declare any Person (other than the Exempt Investors, the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan) to be an Adverse Person, upon a determination by the Board of Directors that such Person, alone or together with its Affiliates and Associates, has or is likely to, at any time after the Rights Dividend Declaration Date, become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock, after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate, that (a) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or would cause directly or indirectly, the Company to change its strategic direction under circumstances where the Board of Directors believes that such change is not in the best interests of the Company and its stockholders, employees, customers, suppliers or other constituencies of the Company and its Subsidiaries, (b) such Beneficial Ownership by such Person is intended to cause, is reasonably likely to cause or would cause pressure on the Company to take action or enter into a transaction or series of transactions, including by causing a transaction with such Person or another Person which would provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company and its stockholders, but for the actions and possible actions of such Person, would not be served by taking such action or entering into such transactions or series of transactions at that time or (c) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company's ability to maintain its competitive position) on the business or prospects of the Company, or (d) such Beneficial Ownership otherwise is determined to be not in the best interests of the Company or its stockholders, employees, customers, suppliers, or other constituents of the Company or its Subsidiaries, and (y) such Person has become the Beneficial Owner of 10% or more of the outstanding shares of Common Stock, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the ~~then~~ then-current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right ~~was~~ would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event~~Event assuming the Distribution Date had already occurred, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). Notwithstanding the provisions of Section 11(a)(ii)(B) hereof, the Board of Directors of the Company may not declare a Person to be an Adverse Person if, prior to the time that such Person acquired 10% or more of the shares of Common Stock then outstanding, such Person provided to the Board of Directors in writing a statement of such Person's purpose and intentions in connection with the proposed acquisition of Common Stock, together with any other information reasonably requested of such Person by the Board of Directors, and the Board of Directors, based on such statement and reasonable inquiry and investigation, including consultation with such Persons as such directors shall deem appropriate, determines to notify and notifies such Person in writing that it will not declare such Person to be an Adverse Person; provided, however, that the Board of Directors may expressly condition in any manner a determination not to declare a Person an Adverse Person on such conditions as the Board of Directors may select, including, without limitation, such Person's not acquiring more than a specified amount of Common Stock and/or on such Person's not taking actions inconsistent with the purposes and intentions disclosed by such Person in the statement provided to the Board of Directors. In the event that the Board of Directors should at any time determine, upon reasonable inquiry and investigation, including consultation with such Persons as such directors shall deem appropriate, that such Person has not met or complied with any condition specified by the Board of Directors pursuant to the preceding sentence, the Board of Directors may at any time thereafter declare such Person to be an Adverse Person pursuant to the provisions of this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company~~’s Articles~~ 's amended and restated Certificate of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have substantially the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share~~ "common stock equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share~~ "common stock equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing ~~Preferred Shares~~ shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) a reduction in Purchase Price, (3) Common ~~Shares~~Stock, or other equity securities of the Company (including without limitation ~~preferred share~~ common stock equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) ~~Preferred Shares,~~ Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred share~~ common stock equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“"equivalent preferred ~~shares”~~stock")) or securities convertible into Preferred ~~Shares~~ Stock or equivalent preferred ~~shares~~ stock at a price per share of Preferred ~~Share~~ Stock or per share of equivalent preferred ~~shares~~ stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or equivalent preferred ~~share~~stock) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or equivalent preferred ~~shares~~ stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.indebted

Appears in 1 contract

Sources: Rights Agreement (Impsat Fiber Networks Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), then and in each such event, except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he or she would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A In the event that: (A) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become an Acquiring Person, unless the event causing the Person to become an Acquiring Person is (l) a transaction set forth in Section ~~11(a)(ii~~13(a) ~~Event shall~~ hereof or (2) an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be ~~deemed~~ (a) at a price which is fair to ~~occur~~ shareholders (taking into account all factors which such members of the Board of Directors deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the ~~event~~ best interests of the Company and its shareholders (a "Qualifying Offer"); or (B) The Board of Directors of the Company shall declare any Person to be an Adverse Person, upon a determination that such Person, alone or together with its Affiliates and Associates, ~~shall~~has, at any time after this Agreement has been filed with the ~~Rights Dividend Declaration Date~~Securities and Exchange Commission as an exhibit to a filing under the Securities Act or Exchange Act, become ~~an Acquiring Person~~the Beneficial Owner of a number of shares of Common Stock which the Board of Directors of the Company determines to be substantial (which number of shares shall in no event represent less than l0% of the outstanding shares of Common Stock) and a determination by the Board of Directors of the Company, ~~unless the event causing~~ after reasonable inquiry and investigation, including consultation with such persons as such directors shall deem appropriate and consideration of such factors as are permitted by applicable law, that (a) such Beneficial Ownership by such Person is intended to ~~become an Acquiring~~ cause the Company to repurchase the shares of Common Stock beneficially owned by such Person is or to cause pressure on the Company to take action or enter into a transaction ~~set forth~~ or series of transactions intended to provide such Person with short-term financial gain under circumstances where the Board of Directors determines that the best long-term interests of the Company would not be served by taking such action or entering into such transaction or series of transactions at the time or (b) such Beneficial Ownership is causing or reasonably likely to cause a material adverse impact (including, but not limited to, impairment of relationships with customers or impairment of the Company's ability to maintain its competitive position) on the business or prospects of the Company; then, promptly following the occurrence of any event described in Section ~~13(a~~11(a)(ii)(A) ~~hereof. Promptly following the first occurrence of~~ or (B) hereof (a "Section 11(a)(ii) Event"), proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths~~ 1/1,000s of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s 's Restated Articles of ~~Incorporation~~ Incorporation, as amended at the time (the "Restated Articles of Incorporation"), but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the ~~excess of (1) the~~ value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value~~”) over (2) the Purchase Price (such excess, the “Spread”~~"), ; and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, : (1l) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of shares, of preferred ~~shares~~stock, such as the Preferred Stock, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board of Directors ~~of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of ~~Directors of the Company~~Directors; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such 30-day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (l) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the Section 11(a)(ii) Trigger Date and the per-share or per-unit value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to ~~have~~ equal the ~~same value as one one-hundredth~~ Current Market Price per share of ~~a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Key Technology Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Ordinary Shares payable in ~~Preferred~~ Ordinary Shares, (B) subdivide the outstanding ~~Preferred~~ Ordinary Shares, (C) combine the outstanding ~~Preferred~~ Ordinary Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Ordinary Shares (including any such reclassification in connection with a ~~consolidation~~ consolidation, amalgamation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred~~ Ordinary Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred~~ Ordinary Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Ordinary Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the Rights ~~Dividend Declaration~~ Issuance Authorization Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , then, promptly following the ~~first~~ later of the occurrence of ~~a Section 11(a)(ii) Event~~such event and the Record Date, proper provision shall be made so that (A) each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, ~~in lieu of~~ such number of ~~one one-hundredths~~ Ordinary Shares of ~~a Preferred Share covered by each Right immediately prior to~~ the ~~Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share~~ Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a Preferred Share~~ Ordinary Shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each such Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per ~~Common~~ Ordinary Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out is duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, unless and until it shall have received such notice. (iii) In the event that the number of ~~Preferred~~ Ordinary Shares which ~~are~~ is authorized by the Company’s ~~Articles~~ Amended and Restated Memorandum of ~~Incorporation~~ Association but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights are~~ Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company ~~shall:~~ shall (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”~~) over (2) the Purchase Price (such excess, the “Spread”~~), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common~~ Ordinary Shares or other equity securities of the Company (including, without limitation, ~~preferred~~ preference shares, or units of ~~preferred~~ preference shares, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)~~Ordinary Shares), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, ,however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ Ordinary Shares, (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional Ordinary Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authoriza- tion of such additional shares (such thirty (30) day period, as it may be extended, is herein called the “Substitution Period”). To the extent that the Company determines that action should be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall notify the Rights Agent whenever it makes a public announcement pursuant to this Section 11(a)(iii) and give the Rights Agent a copy of such announcement. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per ~~Common~~ Ordinary Share ~~(as determined pursuant to Section 11(d) hereof)~~ on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the CompanyDate. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred~~ Ordinary Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) ~~Preferred~~ Ordinary Shares ~~(or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”))~~ or securities convertible into ~~Preferred~~ Ordinary Shares ~~or equivalent preferred shares~~ at a price per ~~Preferred~~ Ordinary Share ~~or per share of equivalent preferred shares (~~or having a conversion price per share, if a security convertible into ~~Preferred Share or equivalent preferred share~~Ordinary Shares) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of Preferred Shares~~ Ordinary Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred~~ Ordinary Shares outstanding on such record date, plus the number of ~~Preferred~~ Ordinary Shares which the aggregate offering price of the total number of ~~Preferred~~ Ordinary Shares ~~and/or equivalent preferred shares~~ so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of ~~Preferred~~ Ordinary Shares outstanding on such record date, plus the number of additional ~~Preferred~~ Ordinary Shares ~~and/or equivalent preferred shares~~ to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Ordinary Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred~~ Ordinary Shares (including any such distribution made in connection with a ~~consolidation~~ consolidation, amalgamation or merger in which the Company is the continuing corporation~~) of evidences of indebtedness~~), cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in ~~Preferred~~ Ordinary Shares, but including any dividend payable in shares other than ~~Preferred~~ Ordinary Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of Preferred Shares~~ Ordinary Share on such record date, less the fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to ~~a share of Preferred Share~~ an Ordinary Share, and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of Preferred Shares~~Ordinary Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (id) ~~For the purpose of any computation hereunder, the “current~~ The Current Market Price per ~~share market price” of the Common Shares~~ Ordinary Share on any date shall be deemed to be (1) for the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the average of the daily closing prices ~~of the Common Shares~~ per such Ordinary Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and (2) for purposes of computations made pursuant to Section 11(a)(iii) hereof, the average of the daily closing prices per such Ordinary Share for the ten (10) consecutive Trading Days immediately following such date; ~~provided, however,~~ provided that in the event that the ~~current market price of a Common~~ Current Market Price per Ordinary Share is determined during a period following the announcement by the ~~Company~~ issuer of such Ordinary Shares of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Sina Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 15% or more of the Common Shares then outstanding, unless the event causing the 15% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the members of the Board of Directors of the Company, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Section (a) (ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company~~’s Articles~~ 's Second Amended and Restated Certificate of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of the Company has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of the Company ~~based upon~~ after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a ~~regular quarterly cash~~ dividend out of the earnings or retained earnings of the ~~Company~~Company as specified in Section 1(a) of the Certificate of Designation establishing and designating the Preferred Shares (a "Regular Dividend")), assets (other than a Regular Dividend or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used~~ date shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.deemed t

Appears in 1 contract

Sources: Rights Agreement (Neose Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares,~~ Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Subject to Section ~~11(a)(ii) Event shall be deemed to occur~~ 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof shall, for a period of sixty (60) days after the later of (i) the occurrence of any such event or (ii) the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price, in accordance with the terms of this Agreement, such number of Common Shares (or, in the discretion of the Board, one one-thousandths of a Preferred Share) as shall equal the result obtained by (A) multiplying the then current Purchase Price by the then number of one one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event and (B) dividing that product by 50% of the then Current Per Share Market Price of the Company's Common Shares (determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares being referred to as the "Adjustment Shares"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that there shall not be sufficient treasury shares or authorized but unissued (and unreserved) Common Shares to permit the exercise in full of the Rights in accordance with the foregoing Section 11(a)(ii) and the Rights become so exercisable (and the Board has determined to make the Rights exercisable into fractions of a Preferred Share), notwithstanding any other provision of this Agreement, to the extent necessary and permitted by applicable law, each Right shall thereafter ~~have~~ represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, ~~in lieu~~ (A) a number of ~~such~~ (or fractions of) Common Shares (up to the maximum number of Common Shares which may permissibly be issued) and (B) a number of one one-~~hundredths~~ thousandths of a Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event, such~~ or a number of ~~one one-hundredths of a Preferred Share as shall equal the result obtained by~~ (xor fractions of) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (~~including~~or, ~~without limitation~~in the discretion of the Board, ~~preferred shares, or units of preferred shares,~~ debt) which the Board ~~of Directors of the Company~~ has ~~deemed~~ determined to have the same aggregate current market value (determined pursuant to Sections 11(d)(i) and 11(d)(ii) hereof, to the extent applicable) as one ~~one-hundredth of a Preferred~~ Common Share (such ~~preferred shares, “preferred share equivalents”)),~~ number of (4or fractions of) Preferred Shares (or other equity securities or debt ~~securities~~ of the Company) being referred to as a "Capital Stock Equivalent"), ~~(5) other assets, or (6) any combination of~~ equal in the ~~foregoing, having an~~ aggregate ~~value equal~~ to the ~~Current Value, where such aggregate value has been determined by the Board~~ number of ~~Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company~~Adjustment Shares; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)sufficient Common Shares and/or Capital Stock Equivalents are unavailable, then the Company shall ~~be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (~~to the extent ~~available~~permitted by applicable law, take all such action as may be necessary to authorize additional Common Shares or Capital Stock Equivalents for issuance upon exercise of the Rights, including the calling of a meeting of stockholders; and provided, further, that if the Company is unable to cause sufficient Common Shares and/or Capital Stock Equivalents to be available for issuance upon exercise in full of the Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise at the Adjusted Purchase Price (as such terms are hereinafter defined). As used herein, the term "Adjusted Number of Shares" shall be equal to that number of (or fractions of) ~~and then, if necessary, cash, which shares~~ Common Shares (and/or ~~cash have an aggregate value~~ Capital Stock Equivalents) equal to the ~~Spread. For purposes~~ product of ~~this Section 11(a)(iii),~~ (A) the ~~value~~ number of ~~one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share~~ Adjustment Shares and (~~as determined pursuant to Section 11(d~~B) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which ~~shall be~~ is the number of ~~Preferred~~ Common Shares ~~outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price~~ and/or Capital Stock Equivalents) available for issuance upon exercise of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, Rights and the denominator of which ~~shall be~~ is the aggregate number of ~~Preferred~~ Adjustment Shares ~~outstanding on such record date, plus the~~ otherwise issuable upon exercise in full of all Rights (assuming there were a sufficient number of ~~additional Preferred~~ Common Shares ~~and/or equivalent preferred shares~~ available) (such fraction being referred to ~~be offered for subscription or purchase (or into which~~ as the ~~convertible securities so to be offered are initially convertible~~"Proration Factor"). ~~In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash,~~ The "Adjusted Purchase Price" shall mean the ~~value of such consideration shall be as determined in good faith by the Board of Directors~~ product of the ~~Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent~~ Purchase Price and the ~~holders of the Rights~~Proration Factor. ~~Preferred Shares owned by or held for the account of the Company~~ The Board may, but shall not be ~~deemed outstanding for~~ required to, establish procedures to allocate the ~~purpose~~ right to receive Common Shares and Capital Stock Equivalents upon exercise of ~~any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in~~ the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all Rights among holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixedRights. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Correctional Services Corp)

Appears in 1 contract

Sources: Rights Agreement (LNB Bancorp Inc)

Appears in 1 contract

Sources: Rights Agreement (Cooper Industries LTD)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration Date~~Merger Effective Time, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company~~’s Articles~~ 's certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the “Current Market Price used to determine the number of Adjustment Shares) (the "Current Value”") over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock (including, without limitation, the Preferred Stock) that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares, “preferred share equivalents”~~stock are herein referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the ~~“Section 11(a)(ii)~~ "Flip-In Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a Common ~~Share~~ Stock is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on such Common Stock other than a regular quarterly cash dividend or the ~~Common Shares, payable in Common Shares or securities convertible into Common Shares~~dividend of the Rights, or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, ~~and such announcement~~ shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite 30 Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or 10 Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex- dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which If the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or not so listed or traded, ~~“current~~ "Current Market Price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Devon Delaware Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm=s-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company=s Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company=s Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company=s (or its Subsidiaries=) past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the Continuing Directors, after receiving advice from one or more nationally recognized investment banking firms, to be in the best interests of the Company and its shareholders (a AQualifying Offer@), after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (as defined in and determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. The Company shall notify the Rights Agent of the suspension of the exercisability of the Rights, and provide the Rights Agent with a copy of such public announcement. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days ~~immediately prior to~~ (as such ~~date; provided, however, that in the event that the current market price of a Common Share~~ term is ~~determined during a period following the announcement by the Company of (A~~hereinafter defined) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Philadelphia Suburban Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding Preferred ~~Shares~~Stock, (C) combine the outstanding Preferred ~~Shares~~ Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred ~~Shares~~ Stock (including any such reclassification in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event (A) any ~~Person~~Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the ~~Rights Dividend Declaration Date~~date of this Agreement, become an Acquiring Person~~, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event~~, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of one one-hundredths of a share of Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the ~~then-~~then number of one one-hundredths of a share of Preferred ~~Share~~ Stock for which a Right ~~was~~ would have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) ~~Event~~Event assuming the Distribution Date had already occurred, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"); provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provision of Section 13(a) hereof, then only the provisions of Section 13(a) hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). (iii) In the event that the number of ~~Preferred Shares~~ shares of Common Stock which are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the ~~Company~~ Company, by resolution of its Board of Directors, shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, of preferred stock which the Board of Directors of the Company has deemed to have substantially the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares~~stock, ~~“preferred share equivalents”~~"Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days ~~following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y)~~ after the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires following the occurrence of a Section 11(a)(ii) Event (the ~~later of (x) and (y) being referred to herein as the “~~"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash shall have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, or that additional time is required for the Board of Directors to decide the appropriate form of distribution to be made and to determine the value thereof, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares or to make such decision and determination, as the case may be (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to the first sentence of this Section 11(a)(iii) and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price per Common Share~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred share equivalent”~~ "Common Stock Equivalent" shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing ~~Preferred Shares~~ shares of Common Stock in accordance with subparagraph (ii) of this Section 11(a), the ~~Company may with respect to each Right~~Company, ~~if a majority of members~~ by resolution of the Board of Directors ~~determine~~ (which shall reflect a determination by the Board that ~~such~~ the action described below is in the best interests of the Company and not contrary to the interests of the holders of Rights), may make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the applicable Purchase ~~Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv))~~ Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~Stock, or other equity securities of the Company (including without limitation ~~preferred share equivalents~~Common Stock Equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current ~~Value~~ Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial ~~advisers~~ advisors selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) ~~Preferred Shares,~~ Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred share equivalents~~Common Stock Equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the ~~Spread~~ Spread, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (~~“equivalent preferred shares”~~"Equivalent Preferred Stock")) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares~~ Stock which the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a ~~consolidation~~ consolidation, statutory share exchange or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) and Section 11(a)(iv) hereof, the ~~“current~~ "Current Market Price" per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) and Section 11(a)(iv) hereof, the "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common ~~Shares~~ Stock for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a the Common ~~Share~~ Stock is determined during a period following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock or securities convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "Current Market Price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.principal

Appears in 1 contract

Sources: Shareholder Rights Agreement (Nexmed Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. (a) ~~The Purchase Price~~(i) To preserve the actual or potential economic value of the Rights, if at any time after the date hereof there shall be any change in the Common Stock or Preferred Stock, whether by reason of stock dividends, stock splits, reverse stock splits, recapitalization, mergers, consolidations, combinations or exchanges of securities, split-ups, split-offs, spin-offs, liquidations, other similar changes in capitalization, any distribution or issuance of cash, assets, evidences of indebtedness or subscription rights, options or warrants to holders of Common Stock or Preferred Stock, as the case may be (other than distribution of the Rights or regular quarterly cash dividends) or otherwise, then, in each such event the Board shall make such appropriate adjustments in the number of shares of Preferred Stock (or the number and kind of ~~shares covered by~~ other securities) issuable upon exercise of each Right (or in exchange for any Right pursuant to Section 20), the Purchase Price and Redemption Price in effect at such time and/or the number of Rights outstanding ~~are subject to~~ at such time (including the number of Rights or fractional Rights associated with each share of Common Stock) such that following such adjustment ~~from time to time as~~ such event shall not have had the effect of reducing or limiting the benefits the holders of the Rights would have had absent such event. If an event occurs that requires an adjustment under both this Section 9(a)(i) and Section 9(a)(ii), the adjustment provided for in this Section 119(a)(i) shall be made prior to, and in addition to, any adjustment required pursuant to Section 9(a)(ii). (iii) In the event ~~the Company shall~~ that any Person becomes an Acquiring Person at any time after the date of this ~~Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares~~Rights Plan, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Section 11(a)(ii) Event shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right shall (except as otherwise provided ~~below and in~~ herein, including Section ~~7(e~~6(e)) ~~hereof) shall thereafter have the right~~ be entitled to ~~receive,~~ receive upon exercise thereof (in accordance with the provisions of Section 6) at the then current Purchase Price ~~in accordance with the terms of this Agreement, in lieu of~~ such number of ~~one~~ one-~~hundredths~~ millionths of a share of Preferred ~~Share covered by each Right immediately prior~~ Stock equal to ~~the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal~~ the result obtained by dividing (x) the product obtained by multiplying the ~~then-~~then current Purchase Price by the ~~then-~~number of ~~one~~ one-~~hundredths~~ millionths of a share of Preferred ~~Share~~ Stock for which a Right was exercisable immediately prior to the ~~first~~ occurrence of ~~a Section 11(a)(ii) Event, and~~ such event (~~y) dividing that~~ such product ~~(which, following~~ being from such ~~first occurrence, shall thereafter be referred to as~~ time on the “Purchase Price” for each Right and for all purposes of this ~~Agreement~~Rights Plan) by (y) 50% of the current market price per share of Common Stock (determined pursuant to Section ~~11(d~~9(b)(i)) ~~hereof) per Common Share~~ on the date of ~~such first occurrence (such number of shares,~~ the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixedevent. (i) For ~~the purpose~~ purposes of ~~any computation hereunder~~computations hereunder other than computations made pursuant to Section 11, the “current ~~per share~~ market price” per share of ~~the~~ Common ~~Shares~~ Stock on any date shall ~~be deemed to~~ be the average of the daily closing prices per share of such Common Stock at the close of the ~~Common Shares~~ regular session of trading for the 30 consecutive Trading Days immediately prior to but not including such date; ~~provided~~and for purposes of computations made pursuant to Section 11, ~~however,~~ the “current market price” per share of Common Stock for any Trading Day shall be the closing price per share of Common Stock at the close of the regular session of trading for such Trading Day; provided that ~~in the event that~~ if the current market price per share of a the Common ~~Share~~ Stock is determined during a period that is in whole or in part following the announcement by the ~~Company~~ issuer of such Common Stock of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Stock payable in shares of such Common ~~Shares~~ Stock, securities exercisable for or ~~securities~~ convertible into shares of such Common ~~Shares~~Stock (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common ~~Shares~~Stock, and prior to ~~the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or ~~distribution,~~ distribution or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the “current market price” shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, at the close of the regular session of trading or, ~~in case~~ if no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system at the close of the regular session of trading with respect to securities listed or admitted to trading on the NASDAQ Stock Market or, if the shares of Common Stock are not listed or admitted to trading on the NASDAQ Stock Market, on the principal national securities exchange on which the shares of Common ~~Shares~~ Stock are listed or admitted to trading or, if the shares of Common ~~Shares~~ Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. ~~(“Nasdaq”),~~ Automated Quotation System or such other system then in use or, if on any such date the shares of Common ~~Shares~~ Stock are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Stock selected by the Board ~~of Directors of~~ (in each case prices which are not identified as having been reported late to the ~~Company~~system). If on any such ~~date~~ date, no ~~market-~~market maker is making a market in the Common ~~Shares~~Stock or the Common Stock is not publicly held or not so listed or traded, the ~~fair value~~ “current market value” of ~~Common Shares~~ such shares on such date shall be as determined in good faith by the Board (or, if at the time of ~~Directors of~~ such determination there is an Acquiring Person, by a nationally recognized investment banking firm selected by the ~~Company shall be used, whose~~ Board) which determination shall be described in a statement filed with the Rights ~~Agent. The term “Trading Day”~~ Agent and shall ~~mean a day on which~~ be conclusive for all purposes. (ii) For the ~~principal national securities exchange on which Common Shares are listed or admitted to trading is open for~~ purpose of any computation hereunder, the ~~transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded,~~ “current ~~per share~~ market price” per share of Preferred Stock shall ~~mean~~ be determined in the same manner as set forth above for the Common Stock in Section 9(b)(i) (other than the last sentence thereof). If the current market price per share of Preferred Stock cannot be determined in such manner, the “current market price” per share of Preferred Stock shall be conclusively deemed to be an amount equal to 1,000,000 (as such number may be appropriately adjusted for such events as stock splits, reverse stock splits, stock dividends and recapitalizations with respect to the Common Stock occurring after the date of this Rights Plan) multiplied by the current market price per share of Common Stock (as determined pursuant to Section 9(b)(i)). For all purposes of this Rights Plan, the “current market price” of one one-millionth of a share of Preferred Stock shall be equal to the “current market price” of one share of Preferred Stock divided by 1,000,000. (iii) For the purpose of any computation hereunder, the value of any securities or assets other than Common Stock or Preferred Stock shall be the fair value ~~per share~~ as determined in good faith by the ~~Board~~ Board, or, if at the time of ~~Directors of~~ such determination there is an Acquiring Person, by a nationally recognized investment banking firm selected by the ~~Company~~Board, ~~whose~~ which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. (c) Notwithstanding any provision of this Rights Plan to the contrary, no adjustment of any item described in Section 9(a)(i) (e.g., the Purchase Price, the Redemption Price, the number of shares of Preferred Stock issuable upon exercise of the Rights, etc.) shall be required unless such adjustment would require an increase or decrease of at least 1% in the relevant item; provided that any adjustments which by reason of this Section 9(c) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 9 shall be made to the nearest cent or to the nearest ten-thousandth of a share of Common Stock or other securities or one ten-billionth of a share of Preferred Stock, as the case may be. (d) All Rights originally issued by the Company subsequent to any adjustment made hereunder shall evidence the right to purchase, at the Purchase Price then in effect, the then applicable number of one-millionths of a share of Preferred Stock and other capital stock issuable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein. (e) Irrespective of any adjustment or change in the Purchase Price or the number of one-millionths of a share of Preferred Stock issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per one one-millionth of a share and the number of shares which were expressed in the initial Right Certificates issued hereunder. (f) In any case in which this Section 9 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer (with prompt written notice thereof to the Rights Agent; and until such written notice is received by the Rights Agent, the Rights Agent may assume conclusively that no such election has occurred) until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of one-millionths of a share of Preferred Stock or other capital stock, if any, issuable upon such exercise over and above the number of one-millionths of a share of Preferred Stock or other capital stock, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided that the Company shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right to receive such additional shares upon the occurrence of the event requiring such adjustment. (g) Anything in this Section 9 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly required by this Section 9, as and to the extent that it, in its sole discretion, determines to be advisable so that any consolidation or subdivision of the Common Stock or Preferred Stock, issuance wholly for cash of any Common Stock or Preferred Stock at less than the current market price, issuance wholly for cash of any Common Stock or Preferred Stock or securities which by their terms are convertible into or exercisable for Common Stock or Preferred Stock, stock dividends or issuance of rights, options or warrants referred to in this Section 9 hereafter made by the Company to the holders of its Common Stock or Preferred Stock shall not be taxable to such shareholders. (h) The Company agrees that after a Distribution Date, it will not, except as permitted by Sections 19, 20 or 23, take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action will substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights.

Appears in 1 contract

Sources: Tax Benefits Preservation Plan (Fidelity Southern Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of ~~shares covered by~~ securities purchasable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In If any adjustment shall be made pursuant to Section 11(a)(i) of the Uniphase Rights Agreement (including any such adjustment resulting from the application of Section 11(f) thereof) or in the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Exchangeable Shares payable in ~~Preferred~~ Exchangeable Shares, (B) subdivide the outstanding ~~Preferred~~ Exchangeable Shares, (C) combine the outstanding ~~Preferred~~ Exchangeable Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Exchangeable Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), then, in connection therewith, the ~~Purchase Price in effect at the time~~ number of ~~the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred~~ Exchangeable Shares or shares of capital stock, as the case may be, issuable on such ~~date~~date upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred~~ Exchangeable Shares or shares of capital stock, as the case may be, which, if such Right had been exercised immediately prior to such ~~date and at a time when the Preferred Share transfer books of the Company were open~~date, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A If any adjustment shall be made pursuant to Section 11(a)(ii) ~~Event~~ of the Uniphase Rights Agreement, there shall at the same time be ~~deemed~~ made a corresponding adjustment to ~~occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after~~ the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section ~~7(e~~7(c) hereof) shall thereafter have the right to receive, upon exercise thereof at the ~~then~~ current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ the number of ~~one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Exchangeable Shares for which such Rights were theretofore exercisable, such number of ~~one one-hundredths of a Preferred Share~~ Exchangeable Shares as shall equal the ~~result obtained~~ number of Units for which each Uniphase Right is exercisable following such adjustment multiplied by ~~(x) multiplying~~ the ~~then-current~~ ratio of the number of Rights then associated with each Exchangeable Share and the Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be ~~referred~~ adjusted to the Uniphase Purchase Price in effect under the Uniphase Rights Agreement following the corresponding adjustment thereunder; provided that the Purchase Price and the number of Exchangeable Shares issuable upon exercise of a Right shall be further adjusted as ~~the “Purchase Price” for each Right and for all purposes of~~ provided in this ~~Agreement) by 50% of the current market price (determined pursuant~~ Agreement to ~~Section 11(d) hereof) per Common Share on~~ reflect any events occurring after the date of such ~~first occurrence~~ adjustment (such ~~number of shares,~~ Exchangeable Shares being the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Exchangeable Shares which are authorized for issuance by the ~~Company’s Articles of Incorporation~~ Company but are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the ~~Company~~ Company, by the vote of a majority of the Board of Directors, shall, to the extent permitted by applicable law: (A) determine the excess (such excess being the "Spread") of (1) the aggregate value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over (2) the Purchase ~~Price (such excess, the “Spread”)~~Price, and (B) with respect to each ~~Right~~Right (other than Rights which have become void pursuant to Section 7(e)), make adequate provision to ~~substitute~~ substitute, in whole or in part, for ~~the~~ such Adjustment Shares, upon exercise of a Right and payment of the ~~applicable~~ Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common Shares or~~ other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”))Company, (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value which, when added to the value of the Exchangeable Shares actually issued upon exercise of such Right, shall have an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in such Purchase Price), where such aggregate value has been determined by a majority of the Board of ~~Directors of the Company based upon the~~ Directors, after receiving advice ~~of one or more~~ from a nationally recognized investment ~~or financial advisors selected by the Board of Directors of the Company~~banking firm; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section ~~11(a)(ii~~11(a)(iii) Trigger Date”"), ~~then~~ then, subject to Section 34 hereof, the Company shall be obligated (to the extent permitted by applicable law) to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Exchangeable Shares (to the extent available) ), and then, if necessary, ~~cash~~cash or a combination thereof, which ~~shares~~ Exchangeable Shares and/or cash shall have an aggregate value equal to the Spread. To the extent that the Company determines that some action need be taken pursuant to the first sentence of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ an Exchangeable Share shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Exchangeable Share, on the Section ~~11(a)(ii~~11(a)(iii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the CompanyDate. (b) ~~In case~~ If any adjustment shall be made pursuant to Section 11(b) of the ~~Company shall fix a record date for~~ Uniphase Rights Agreement (including any such adjustment resulting from the application of Section 1l(f) thereof), then, in connection with the issuance of rights, options or warrants to all holders of ~~Preferred~~ Exchangeable Shares ~~entitling them~~ corresponding to ~~subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having~~ the ~~same~~ issuance of rights, ~~privileges and preferences as~~ options or warrants to the ~~Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share~~ holders of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on Uniphase Common Stock which occasioned such ~~record date~~adjustment, the Purchase Price to be in effect after ~~such~~ the record date for the issuance of such rights, options or warrants to holders of Exchangeable Shares shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by ~~a fraction,~~ the ~~numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares~~ same fraction by which the ~~aggregate offering price~~ "Purchase Price" under Section 11(b) of the ~~total number of Preferred Shares and/or equivalent preferred shares so~~ Uniphase Rights Agreement is multiplied to ~~be offered (and/or~~ effect the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible)corresponding adjustment thereunder. In ~~case~~ the event such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by a majority of the Board of ~~Directors of the Company~~Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Exchangeable Shares owned by or held for the account of the Company or any Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) ~~In case~~ If any adjustment shall be made pursuant to Section 1l(c) of the ~~Company shall fix a record date for a distribution to all holders of Preferred Shares~~ Uniphase Rights Agreement (including any such ~~distribution made~~ adjustment resulting from the application of Section 11(f) thereof), then, in connection with a ~~consolidation or merger in which the Company is the continuing corporation)~~ distribution of evidences of indebtedness, ~~cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company)~~cash, assets ~~(other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares)~~ or subscription rights or ~~warrants (excluding those referred to in Section 11(b) hereof)~~warrants, the Purchase Price to be in effect after ~~such~~ the record date for the distribution of such evidences of indebtedness, cash, assets or subscription rights or warrants to the holders of Exchangeable Shares shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by ~~a fraction,~~ the ~~numerator of~~ same fraction by which ~~shall be~~ the ~~current market price (as determined pursuant to~~ "Purchase Price" under Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent11(c) of the ~~portion of~~ Uniphase Rights Agreement is multiplied to effect the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Sharescorresponding adjustment thereunder. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (id) For the purpose of any computation hereunder, the “"current ~~per share~~ market price~~” of the Common Shares~~ " per Exchangeable Share on any date shall be deemed to be equivalent to the ~~average~~ "current market price" per share of Uniphase Common Stock as determined in accordance with Section 11(d) of the ~~daily closing prices~~ Uniphase Rights Agreement. (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be required if no adjustment in the Uniphase Purchase Price is required pursuant to Section 11(e) of the ~~Common~~ Uniphase Rights Agreement. (f) If as a result of an adjustment made pursuant to Section 13(a) hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock other than Exchangeable Shares, thereafter the number of such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Exchangeable Shares ~~for~~ contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (k), (l), (m) and (p), and the ~~30 consecutive Trading Days~~ provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Exchangeable Shares shall apply on like terms to any such other shares. (g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of Exchangeable Shares (or other securities or amount of cash or combination thereof) that may be acquired from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein. (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of Exchangeable Shares (calculated to the nearest one hundred-thousandth of an Exchangeable Share) obtained by (i) multiplying (x) the number of Exchangeable Shares covered by a Right immediately prior to such ~~date~~adjustment by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price. (i) The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in lieu of any adjustment in the number of Exchangeable Shares that may be acquired upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of Exchangeable Shares for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one hundredth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least ten days later than the date of such public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates to be so distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement. (j) Irrespective of any adjustment or change in the Purchase Price or the number of Exchangeable Shares issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Purchase Price per Exchangeable Share and the number of Exchangeable Shares which were expressed in the initial Rights Certificates issued hereunder. (k) [Intentionally left blank.] (l) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of that number of Exchangeable Shares and shares of other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of Exchangeable Shares and shares of other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment. (m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the ~~event that the current market price of a Common Share is determined during a period following the announcement~~ Purchase Price, in addition to those adjustments expressly required by ~~the Company of (A) a dividend or distribution on the Common Shares~~this Section 11, ~~payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares,~~ as and ~~prior~~ to the ~~expiration~~ extent that in their good faith judgment a majority of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors shall determine to be advisable in order that any (i) consolidation or subdivision of the ~~Company. If on any such date no market-maker is making a market in Common~~ Exchangeable Shares, (ii) issuance wholly for cash of any Exchangeable Shares at less than the ~~fair value~~ current market price, (iii) issuance wholly for cash of ~~Common~~ Exchangeable Shares ~~on such date as determined~~ or securities which by their terms are convertible into or exchangeable for Exchangeable Shares, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in ~~good faith~~ this Section 11, hereafter made by the ~~Board~~ Company to holders of ~~Directors~~ its Exchangeable Shares, shall not be taxable to such holders or shall reduce the taxes payable by such holders. (n) Neither Uniphase nor the Company shall, at any time after the Distribution Date, (i) consolidate or amalgamate with any other Person (other than a Subsidiary of Uniphase or the Company in a transaction which complies with Section 11(o)), (ii) merge with or into any other Person (other than a Subsidiary of Uniphase or the Company in a transaction which complies with Section 11(o)), or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction, or a series of transactions, assets or earning power aggregating more than 50% of the ~~Company shall be used~~assets or earning power, ~~whose determination shall be described~~ in ~~a statement filed with~~ the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors case of the Company, ~~whose determination shall be described in a statement filed with~~ of the ~~Rights Agent.~~Company and its Subsidiaries (taken as

Appears in 1 contract

Sources: Rights Agreement (JDS Uniphase Corp /Ca/)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the ~~Preferred~~ Ordinary Shares payable in ~~Preferred~~ Ordinary Shares, (B) subdivide the outstanding ~~Preferred~~ Ordinary Shares, (C) combine the outstanding ~~Preferred~~ Ordinary Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Ordinary Shares (including any such reclassification in connection with a ~~consolidation~~ consolidation, amalgamation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred~~ Ordinary Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of ~~Preferred~~ Ordinary Shares or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Ordinary Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the Rights ~~Dividend Declaration~~ Issuance Authorization Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof~~. Promptly~~ , then, promptly following the ~~first~~ later of the occurrence of ~~a Section 11(a)(ii) Event~~such event and the Record Date, proper provision shall be made so that (A) each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, ~~in lieu of~~ such number of ~~one one-hundredths~~ Ordinary Shares of ~~a Preferred Share covered by each Right immediately prior to~~ the ~~Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share~~ Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a Preferred Share~~ Ordinary Shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each such Right and for all purposes of this Agreement) by 50% of the ~~current market price~~ Current Market Price (determined pursuant to Section 11(d) hereof) per ~~Common~~ Ordinary Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out is duties under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, unless and until it shall have received such notice. (iii) In the event that the number of ~~Preferred~~ Ordinary Shares which ~~are~~ is authorized by the Company’s ~~Articles~~ Amended and Restated Memorandum of ~~Incorporation~~ Association but not outstanding or reserved for issuance for purposes other than upon exercise of the ~~Rights are~~ Rights, is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company ~~shall:~~ shall (A) determine ~~the excess of (1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”~~) over (2) the Purchase Price (such excess, the “Spread”~~), and (B) with respect to each ~~Right~~Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) ~~Common~~ Ordinary Shares or other equity securities of the Company (including, without limitation, ~~preferred~~ preference shares, or units of ~~preferred~~ preference shares, which the Board ~~of Directors of the Company~~ has deemed to have essentially the same value or economic rights as ~~one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)~~Ordinary Shares), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current ~~Value~~Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board ~~of Directors of the Company~~ based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ Ordinary Shares, (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional Ordinary Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the “Substitution Period”). To the extent that the Company determines that action should be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. The Company shall notify the Rights Agent whenever it makes a public announcement pursuant to this Section 11(a)(iii) and give the Rights Agent a copy of such announcement. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred~~ each Adjustment Share shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per ~~Common~~ Ordinary Share ~~(as determined pursuant to Section 11(d) hereof)~~ on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the CompanyDate. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred~~ Ordinary Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) ~~Preferred~~ Ordinary Shares ~~(or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”))~~ or securities convertible into ~~Preferred~~ Ordinary Shares ~~or equivalent preferred shares~~ at a price per ~~Preferred~~ Ordinary Share ~~or per share of equivalent preferred shares (~~or having a conversion price per share, if a security convertible into ~~Preferred Share or equivalent preferred share~~Ordinary Shares) less than the ~~current market price~~ Current Market Price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of Preferred Shares~~ Ordinary Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of ~~Preferred~~ Ordinary Shares outstanding on such record date, plus the number of ~~Preferred~~ Ordinary Shares which the aggregate offering price of the total number of ~~Preferred~~ Ordinary Shares ~~and/or equivalent preferred shares~~ so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of ~~Preferred~~ Ordinary Shares outstanding on such record date, plus the number of additional ~~Preferred~~ Ordinary Shares ~~and/or equivalent preferred shares~~ to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. ~~Preferred~~ Ordinary Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of ~~Preferred~~ Ordinary Shares (including any such distribution made in connection with a ~~consolidation~~ consolidation, amalgamation or merger in which the Company is the continuing corporation~~) of evidences of indebtedness~~), cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in ~~Preferred~~ Ordinary Shares, but including any dividend payable in shares other than ~~Preferred~~ Ordinary Shares) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of Preferred Shares~~ Ordinary Share on such record date, less the fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to ~~a share of Preferred Share~~ an Ordinary Share, and the denominator of which shall be such ~~current market price~~ Current Market Price (as determined pursuant to Section 11(d) hereof) per ~~share of Preferred Shares~~Ordinary Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (id) ~~For the purpose of any computation hereunder, the “current~~ The Current Market Price per ~~share market price” of the Common Shares~~ Ordinary Share on any date shall be deemed to be (1) for the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the average of the daily closing prices ~~of the Common Shares~~ per such Ordinary Share for the 30 thirty (30) consecutive Trading Days immediately prior to such date, and (2) for purposes of computations made pursuant to Section 11(a)(iii) hereof, the average of the daily closing prices per such Ordinary Share for the ten (10) consecutive Trading Days immediately following such date; ~~provided, however,~~ provided that in the event that the ~~current market price of a Common~~ Current Market Price per Ordinary Share is determined during a period following the announcement by the ~~Company~~ issuer of such Ordinary Shares of (A) a dividend or distribution on ~~the Common Shares,~~ such Ordinary Shares payable in ~~Common~~ such Ordinary Shares or securities convertible into ~~Common Shares~~such Ordinary Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the Common~~ such Ordinary Shares, and ~~prior to the expiration of 30 Trading Days after~~ the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or ~~reclassification, and such announcement~~ reclassification shall not have ~~caused~~ occurred prior to the ~~closing prices used to determine~~ commencement of the ~~current per share market price on any~~ requisite thirty (30) Trading Day ~~during such period not to be fully comparable with the closing price on such date~~or ten (10) Trading Day period, as set forth above, then, and in each such ~~closing price so used~~ case, the Current Market Price shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Ordinary Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the ~~Common~~ Ordinary Shares are listed or admitted to trading or, if ~~Common~~ the Ordinary Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market, Inc.~~ the National Association of Securities Dealers Automated Quotation System (“~~Nasdaq~~NASDAQ”)) or such other system then in use, or, if on any such date ~~Common~~ the Ordinary Shares are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in ~~Common Shares,~~ the Ordinary Shares selected by the ~~Board of Directors of the Company~~Board. If on any such date no ~~market-~~market maker is making a market in ~~Common~~ the Ordinary Shares, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board ~~of Directors of the Company~~ shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “Trading Day” shall mean a day on which the principal national securities exchange on which ~~Common~~ the Ordinary Shares are listed or admitted to trading is open for the transaction of business or, if ~~Common~~ the Ordinary Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If ~~Common~~ the Ordinary Shares are not publicly held or not so listed or traded, ~~“current~~ Current Market Price per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes.

Appears in 1 contract

Sources: Rights Agreement (Sina Corp)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ adjusted to the extent appropriate so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm’s-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company’s Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company’s Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company’s (or its Subsidiaries’) past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the members of the Board of Directors, after taking into consideration all factors that such members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction ~~set forth in~~ or series of transactions involving the Company or any of its Subsidiaries, other than a Section ~~13(a~~13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) ~~hereof. Promptly~~ that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s Articles of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ~~(2)~~ the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that a majority of the members of the Board of Directors of in office at the ~~Company~~ time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, hereinafter referred to as “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the members of the Board of Directors of in office at the ~~Company based upon~~ time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to and not including such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “current market price” per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following and not including such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.fol

Appears in 1 contract

Sources: Rights Agreement (RCM Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares ~~covered by~~ or other securities subject to purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time ~~after the date of this Agreement~~ (A) declare a dividend on the outstanding shares of Preferred ~~Shares~~ Stock payable in shares of Preferred ~~Shares~~Stock, (B) subdivide the outstanding shares of Preferred ~~Shares~~Stock, (C) combine the outstanding shares of Preferred ~~Shares~~ Stock into a smaller number of ~~shares,~~ shares or (D) ~~issue any~~ otherwise reclassify the outstanding shares of ~~its capital stock in a reclassification of the~~ Preferred ~~Shares~~ Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred ~~Shares~~ Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed~~ Subject to ~~occur~~ Sections 23 and 24 of this Agreement, in the event any ~~Person, alone or together with its Affiliates and Associates,~~ Person shall, at any time after the ~~Rights Dividend Declaration~~ Record Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner of any additional shares of Common Stock other than pursuant to such Permitted Offer or a transaction set forth in Section 13(a) or 13(d) hereof~~. Promptly following~~ ), then, (x) the Purchase Price shall be adjusted to be the Purchase Price immediately prior to the first occurrence of a ~~Section 11(a)(ii~~Flip-In Event multiplied by the number of Fractional Shares of Preferred Stock for which a Right was exercisable immediately prior to such first occurrence and (y) ~~Event, proper provision shall be made so that~~ each holder of a Right (except as provided below in Section 11(a)(iii) and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at a price equal to the ~~then current~~ Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such number~~ shares of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event~~Stock, such number of ~~one one-hundredths~~ shares of ~~a Preferred Share~~ Common Stock of the Company as shall equal the result obtained by ~~(x) multiplying~~ dividing the ~~then-current~~ Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the ~~current market price (determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Common ~~Share~~ Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”); provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of ~~Preferred Shares which~~ shares of Common Stock that are authorized by the Company’s ~~Articles~~ certificate of ~~Incorporation~~ incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights ~~are~~ is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: , to the extent permitted by applicable law and regulation, (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (computed using the Current Market Price used to determine the number of Adjustment Shares) (the “Current Value”) over (2) the Purchase Price (such ~~excess,~~ excess is herein referred to as the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon the exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common ~~Shares~~ Stock or other equity securities of the Company (including, without limitation, ~~preferred~~ shares, or units of ~~preferred~~ shares, ~~which~~ of preferred stock (including, without limitation, the Preferred Stock) that the Board of Directors of the Company has ~~deemed~~ determined to have the same value as ~~one one-hundredth~~ shares of ~~a Preferred Share~~ Common Stock (such shares of preferred ~~shares,~~ stock are herein referred to as “~~preferred share equivalents~~Common Stock Equivalents”)), (4) debt securities of the Company, (5) other ~~assets,~~ assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within ~~thirty (30)~~ 30 days following the later of (x) the first occurrence of a ~~Section 11(a)(ii)~~ Flip-In Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “~~Section 11(a)(ii)~~ Flip-In Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred Shares~~ shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be extended to the extent necessary, but not more than 90 days after the Flip-In Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company or the Board of Directors determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Stock shall be ~~deemed to be~~ the ~~current market price~~ Current Market Price per share of the Common ~~Share (as determined pursuant to Section 11(d) hereof)~~ Stock on the ~~Section 11(a)(ii)~~ Flip-In Trigger Date and the value of any ~~“preferred share equivalent”~~ Common Stock Equivalent shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Stock on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred ~~Shares~~ Stock entitling them to subscribe for or purchase (for a period expiring within ~~forty-five (45)~~ 45 calendar days after such record date) Preferred ~~Shares~~ Stock (or shares having substantially the same rights, privileges and preferences as the shares of Preferred ~~Shares~~ Stock (“~~equivalent preferred shares~~Equivalent Preferred Stock”)) or securities convertible into Preferred ~~Shares~~ Stock or ~~equivalent preferred shares~~ Equivalent Preferred Stock at a price per share of Preferred ~~Share~~ Stock or per share of ~~equivalent preferred shares~~ Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Stock or ~~equivalent preferred share~~Equivalent Preferred Stock) less than the ~~current market price (as determined pursuant to Section 11(d)(ii) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of shares of Preferred ~~Shares which~~ Stock that the aggregate offering price of the total number of shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such ~~current market price~~Current Market Price, and the denominator of which shall be the number of shares of Preferred ~~Shares~~ Stock outstanding on such record date, plus the number of additional shares of Preferred ~~Shares~~ Stock and/or ~~equivalent preferred shares~~ Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of ~~consideration~~ consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred ~~Shares~~ Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred ~~Shares~~ Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred ~~Shares~~Stock, but including any dividend payable in ~~shares~~ stock other than Preferred ~~Shares~~Stock) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~ Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred ~~Share~~ Stock and the denominator of which shall be such ~~current market price (as determined pursuant to Section 11(d) hereof)~~ Current Market Price per share of Preferred ~~Shares~~Stock. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “~~current~~ Current Market Price” per share ~~market price”~~ of ~~the~~ Common ~~Shares~~ Stock of a Person on any date shall be deemed to be the average of the daily ~~closing prices~~ Closing Prices per share of ~~the~~ such Common ~~Shares~~ Stock for the 30 consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices per share of such Common Stock for the 10 consecutive Trading Days immediately following such date; provided, however, that in the event that the ~~current market price~~ Current Market Price per share of a Common ~~Share~~ Stock is determined during a period following the announcement ~~by the Company~~ of (A) a dividend or distribution on ~~the~~ such Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such Stock other than a regular quarterly cash dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.the

Appears in 1 contract

Sources: Rights Agreement (Hospira Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (ia) In the ~~event~~ event (i) the ~~Company~~ Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of ~~shares~~Preferred Shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the ~~Company~~ Corporation is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock which, if such Right had been exercised immediately prior to such date and at a time when the Preferred ~~Share~~ Shares transfer books of the ~~Company~~ Corporation were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Corporation issuable upon exercise of one Right. If an event occurs which would require an adjustment under both ~~this~~ Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii~~) hereof~~). (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in the event~~ any Person, alone or together with its Affiliates and Associates, ~~shall, at any time after the Rights Dividend Declaration Date,~~ shall become an Acquiring Person, ~~unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event,~~ then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) ~~shall thereafter~~ shall, for a period of 60 days after the later of the occurrence of any such event or the effective date of an appropriate registration statement under the Act pursuant to Section 9 hereof, have ~~the~~ a right to receive, upon exercise thereof at a price equal to the then current Purchase ~~Price~~ Price, in accordance with the terms of this Agreement, ~~in lieu of~~ such number of ~~one one-hundredths of a~~ Preferred ~~Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share~~ Shares as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of one one-~~hundredths~~ thousandths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and dividing that product by (y) ~~dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by~~ 50% of the then current per share market price of the Corporation's Common Shares (determined pursuant to Section 11(d) hereof) ~~per Common Share~~ on the date of such first occurrence (such number of ~~shares,~~ shares being referred to as the “"Adjustment Shares”").; provided, however, that if the transaction that would otherwise give rise to the foregoing adjustment is also subject to the provisions of Section 13 hereof, then only the provisions of Section 13 hereof shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii); (iii) ~~In the event~~ that ~~the number of~~ there shall not be sufficient treasury shares or authorized but unissued (and unreserved) Preferred Shares ~~which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient~~ to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) and the Rights become so exercisable, notwithstanding any other provision of this ~~Section 11(a)~~Agreement, to the ~~Company shall:~~ extent necessary and permitted by applicable law, each Right shall thereafter represent the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, (Ax) ~~determine the excess~~ a number of (1or fractions of) Common Shares (up to the ~~value~~ maximum number of ~~the Adjustment~~ Common Shares ~~issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”~~which may permissibly be issued), and (~~B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2~~y) a ~~reduction in the Purchase Price,~~ number of (3or fractions of) ~~Common Shares or~~ other equity securities of the ~~Company~~ Corporation (or, in the discretion of the Board of Directors, debt) including, ~~without limitation~~but not limited to, ~~preferred shares, or units~~ fractions of ~~preferred shares~~a Preferred Share, which the Board of Directors of the ~~Company~~ Corporation has ~~deemed~~ determined to have the same aggregate current market value (determined pursuant to Sections 11(d)(i) and 11(d)(ii) hereof, to the extent applicable) as one ~~one-hundredth of a Preferred~~ Common Share (such ~~preferred shares~~number of, ~~“preferred share equivalents”)~~or fractions of, Preferred Shares, debt, or other equity securities or debt of the Corporation being referred to as a "capital stock equivalent"), ~~(4) debt securities of~~ equal in the ~~Company, (5) other assets, or (6) any combination of the foregoing, having an~~ aggregate ~~value equal~~ to the ~~Current Value, where such aggregate value has been determined by the Board~~ number of ~~Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company~~Adjustment Shares; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”)there are unavailable sufficient Preferred Shares, Common Shares and/or capital stock equivalents, then the ~~Company shall be obligated to deliver~~Corporation shall, ~~upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (~~to the extent ~~available) and then~~permitted by applicable law, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that take all such action ~~is in the best interests of the Company and not contrary~~ as may he necessary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) authorize additional Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based capital stock equivalents for issuance upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders exercise of the Rights~~. Preferred Shares owned by or held for~~ , including the ~~account~~ calling of a meeting of stockholders; and provided, further, that if the ~~Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date~~ Corporation is ~~fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted~~ unable to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in cause sufficient Preferred Shares, ~~but including any dividend payable~~ Common Shares and/or capital stock equivalents to be available for issuance upon exercise in ~~shares other than Preferred Shares) or subscription rights or warrants~~ full of the Rights, then each Right shall thereafter represent the right to receive the Adjusted Number of Shares upon exercise at the Adjusted Purchase Price (~~excluding those referred to in Section 11(b) hereof~~as such terms are hereinafter defined). As used herein, the ~~Purchase Price to be in effect after such record date~~ term "Adjusted Number of Shares" shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.be

Appears in 1 contract

Sources: Rights Agreement (Harris Interactive Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm's-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company's Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company's Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company's (or its Subsidiaries') past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a stockholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantage provided by the Company or any of its Subsidiaries, or (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms that provide fair value to all stockholders, as determined by at least a majority of the Continuing Directors, after taking into consideration all factors that such ~~Person~~ members of the Board of Directors deem relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that such members of the Board of Directors believe, in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to ~~become~~ realize maximum value, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”"). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company~~’s Articles~~ 's Certificate of ~~Incorporation~~ Incorporation, as amended, but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which the Board of Directors~~ shares that a majority of the ~~Company~~ Continuing Directors in office at the time has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by ~~the Board of Directors~~ a majority of the ~~Company based upon~~ Continuing Directors in office at the time after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices ~~of the~~ per Common ~~Shares~~ Share for the 30 thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date~~; provided~~, ~~however~~and for purposes of computations made pursuant to Section 11(a)(iii) hereof, ~~that in~~ the ~~event that the~~ "current market ~~price of a~~ price" per Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any ~~Trading Day during such period not~~ date shall be deemed to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the daily closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the prices per Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open Share for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.ten (10) consecutive Trading Days immediately

Appears in 1 contract

Sources: Rights Agreement (Cotelligent Group Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii) Event shall be deemed to occur in~~ In the event any ~~Person~~Person (other than an Exempted Person or the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a ~~transaction set forth in~~ Section ~~13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii)~~ 13 Event, then proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof on or after the Distribution Date at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “"Purchase Price” " for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “"Adjustment Shares”").. _____________________________________________________________________________________________________________________________________ (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s 's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “"Current Value”") over ~~(2)~~ the Purchase Price (such excess, the “"Spread”"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that the Board of ~~Directors~~ Directors, with the concurrence of at least a majority of the ~~Company~~ Continuing Directors in office at the time, has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, ~~“preferred~~ hereinafter referred to as "common share equivalents”")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of ~~Directors~~ Directors, with the concurrence of at least a majority of the ~~Company based upon~~ Continuing Directors in office at the time, after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s 's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “"Section 11(a)(ii) Trigger Date”"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors, with the concurrence of at least a majority of the Continuing Directors in office at the time, shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any ~~“preferred~~ "common share equivalent” " shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company.. _________________________________________________________________________________________________________________________________________ (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“"equivalent preferred shares”")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, with the concurrence of at least a majority of the Continuing Directors in office at the time, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the Board of Directors of the Company, with the concurrence of at least a majority of the Continuing Directors in office at the time, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed.. _____________________________________________________________________________________________________________________________________ (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “"current ~~per share~~ market price~~” of the~~ " per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices per Common Share for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per Common Share on any date shall be deemed to be the average of the daily closing prices per Common ~~Shares~~ Share for the 30 ten (10) consecutive Trading Days immediately ~~prior to~~ following such date; provided, however, that in the event that the current market price ~~of a~~ per Common Share is determined during a period following the announcement by the ~~Company~~ issuer of such Common Share of (A) a dividend or distribution on ~~the~~ such Common ~~Shares,~~ Share payable in Common Shares or securities convertible into Common ~~Shares~~Shares (other than the Rights), or (B) any subdivision, combination or reclassification of ~~the~~ such Common Shares, and prior to the expiration of 30 the requisite thirty (30) Trading ~~Days~~ Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, and in each such ~~closing price so used~~ case, the "current market price" shall be ~~appropriately~~ properly adjusted to ~~make it fully comparable with the closing price on such date~~take into account ex-dividend trading. The closing price for each ~~day~~ Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked ~~prices~~prices in the over-the-counter market, as reported by ~~The Nasdaq Stock Market~~the National Association of Securities Dealers, Inc. Automated Quotation System (~~“Nasdaq”)~~"NASDAQ") or such other system then in use, or, if on any such date the Common Shares are not quoted by ~~Nasdaq~~any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common ~~Shares,~~ Shares selected by the Board of Directors of the Company. If on any such date no ~~market-~~market maker is making a market in the Common Shares, the fair value of ~~Common Shares~~ such shares on such date as determined in good faith by the Board of Directors of the Company shall be used~~, whose determination shall be described in a statement filed with the Rights Agent~~. The term “"Trading Day” " shall mean a day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the transaction of business or, if the Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Shares are not publicly held or not so listed or traded, “"current market price" per share ~~market price”~~ shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, with the concurrence of at least a majority of the Continuing Directors in office at the time, whose determination shall be described in a statement filed with the Rights ~~Agent.~~Agent and shall be conclusive for all purposes. _______________________________________________________________________________________________________________________________________

Appears in 1 contract

Sources: Rights Agreement (SPS Technologies Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares and other securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on any security of the ~~Preferred Shares~~ Company payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of Preferred Shares or capital stock, as the case may be, issuable on such date, shall be ~~proportionately~~ proportionately, adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the adjusted Purchase ~~Price then in effect~~Price, the aggregate number and kind of Preferred Shares or capital stock, as the case may be, ~~which~~that, if such Right had been exercised immediately prior to such date and at a time when the Preferred Share transfer books ~~of the Company~~ were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) ~~A Section 11(a)(ii~~In the event: (A) ~~Event~~ any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the Stock Acquisition Date, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be ~~deemed~~ the continuing or surviving corporation of such merger or combination and the Common Shares of the Company or other equity securities of the Company shall remain outstanding, (2) shall, in one transaction or a series of transactions, transfer any assets to ~~occur~~ the Company or to any of its Subsidiaries in exchange (in whole or in part) for Common Shares, for shares of other equity securities of the ~~event~~ Company, or for securities exercisable for or convertible into shares of equity securities of the Company (Common Shares or otherwise) or otherwise obtain from the Company, with or without consideration, any ~~Person~~additional shares of such equity securities or securities exercisable for or convertible into shares of such equity securities (other than pursuant to a pro rata distribution to all holders of Common Shares), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of assets in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of its Subsidiaries, on terms and conditions less favorable to the Company than the Company would be able to obtain in arm’s-length negotiation with an unaffiliated third party, other than pursuant to a Section 13 Event, (4) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise dispose of assets having an aggregate fair market value of more than $5,000,000 in one transaction or a series of transactions, to, from or with (as the case may be) the Company or any of the Company’s Subsidiaries (other than incidental to the lines of business, if any, engaged in as of the date hereof between the Company and such Acquiring Person or Associate or Affiliate), other than pursuant to a Section 13 Event, (5) shall receive any compensation from the Company or any of the Company’s Subsidiaries other than compensation for full-time employment as a regular employee at rates in accordance with the Company’s (or its Subsidiaries’) past practices, or (6) shall receive the benefit, directly or indirectly (except proportionately as a shareholder and except if resulting from a requirement of law or governmental regulation), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company or any of its Subsidiaries; or (B) any Person (other than (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., (ii) any immediate family member of ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. who exceeds the 20% Company ownership threshold solely by reason of a transfer of Common Shares from ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. or his spouse to such immediate family member and who does not subsequently acquire at least 1% of the Common Shares outstanding from a source other than ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. or his spouse, (iii) the Company, (iv) any Subsidiary of the Company, (v) any employee benefit plan of the Company or of any Subsidiary of the Company, or (vi) any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become ~~an Acquiring Person~~the Beneficial Owner of 20% or more of the Common Shares then outstanding, unless the event causing the 20% threshold to be crossed is a Section 13 Event, or is an acquisition of Common Shares pursuant to a tender offer or an exchange offer for all outstanding Common Shares at a price and on terms determined by at least a majority of the Board, after receiving advice from one or more nationally recognized investment banking firms, to be in the best interests of the Company and its shareholders (a “Qualifying Offer”), after taking into consideration all factors that the Board deems relevant, including, without limitation, the long-term prospects and value of the Company and the prices and terms that the Board believes in good faith, could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value, or (C) during such ~~Person to become~~ time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its Subsidiaries, other than a Section 13 Event or series of such Section 13 Events (whether or not with or into or otherwise involving an Acquiring Person) that has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries that is directly or indirectly beneficially owned by any Acquiring Person ~~is a transaction set forth in Section 13(a) hereof. Promptly~~ or any Associate or Affiliate of any Acquiring Person, then, promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in ~~Section~~ section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of ~~such~~ a number of ~~one one-hundredths of a~~ Preferred Share ~~covered by each Right immediately prior to the Section 11(a)(ii) event~~Fractions, such number of ~~one one-hundredths~~ Common Shares of ~~a Preferred Share~~ the Company as shall equal the result obtained by (x) multiplying the ~~then-~~then current Purchase Price by the ~~then-~~then number of ~~one one-hundredths of a~~ Preferred Share Fractions for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (as defined in and determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such ~~number~~ number, of shares, the “Adjustment Shares”). (iii) In the event that the number of ~~Preferred~~ Common Shares ~~which~~ that are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of ~~(1)~~ the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over ~~(2)~~ the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares of the same or a different class or other equity securities of the Company (including, without limitation, preferred ~~shares,~~ shares or units of preferred ~~shares, which~~ shares that the Board ~~of Directors of the Company~~ has deemed (based, among other things, on the dividend and liquidation rights of such preferred shares) to have substantially the same economic value as ~~one one-hundredth of a Preferred Share~~ Common Shares (such preferred shares, hereinafter referred to as “~~preferred~~ common share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by action of a majority of the Board ~~of Directors of the Company based upon~~ after considering the advice of ~~one or more~~ a nationally recognized investment ~~or financial advisors~~ banking firm selected by the ~~Board of Directors of the Company~~Board; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section ~~11(a)(ii~~11 (a) (ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, ~~Preferred~~ Common Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board shall determine in good faith that it is likely that sufficient additional Common Shares could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the “Substitution Period”). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. The Company shall make a public announcement when the exercisability of the Rights has been temporarily suspended, and again when such suspension is no longer in effect. The Company shall notify the Rights Agent of the suspension of the exercisability of the Rights, and provide the Rights Agent with a copy of such public announcement. For purposes of this Section 11(a)(iii), the value of ~~one one-hundredth of a Preferred Share~~ the Common Shares shall ~~be deemed to~~ be the current market price ~~per Common Share~~ (as determined pursuant to Section 11(d) hereof) per Common Share on the Section 11(a)(ii) Trigger Date and the value of any “~~preferred~~ common share equivalent” shall be deemed to have the same value as ~~one one-hundredth of a Preferred Share~~ the Common Shares on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to ~~all~~ holders of ~~Preferred Shares~~ any security of the Company entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per ~~share of~~ equivalent preferred ~~shares~~ share (or having a conversion price per share, if a security convertible into Preferred ~~Share~~ Shares or equivalent preferred ~~share~~shares) less than the current market price (as determined pursuant to Section ~~11(d)(ii~~11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares ~~which~~ that the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Company, the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price ~~which~~ that would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly ~~cash~~ dividend out of the earnings or retained earnings of the Company), assets (other than a regular quarterly dividend referred to above or dividend payable in Preferred Shares, but including any dividend payable in ~~shares~~ stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~ Share on such record date, less the then fair market value (as determined in good faith by the ~~Board of Directors of the Company~~Board, whose determination shall be described in a statement filed with the Rights ~~Agent~~Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a ~~share of~~ Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per ~~share of~~ Preferred ~~Shares~~Share. Such adjustments shall be made successively whenever such a ~~record-~~record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the “current ~~per share~~ market price” ~~of the~~ per Common ~~Shares~~ Share on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.dee

Appears in 1 contract

Sources: Rights Agreement (Sei Investments Co)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i1) ~~In the event~~ If the Company shall at any time after the date of this Agreement (A) declare or pay a dividend on the ~~Preferred~~ Common Shares payable in ~~Preferred~~ Common Shares, (B) subdivide the outstanding ~~Preferred~~ Common Shares into a greater number of Common Shares, (C) combine the outstanding ~~Preferred~~ Common Shares into a smaller number of ~~shares,~~ Common Shares or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Common Shares (including any such reclassification in connection with a ~~consolidation~~ consolidation, merger or ~~merger~~ statutory share exchange in which the Company is the ~~continuing~~ continuing, surviving or ~~surviving~~ acquiring corporation), except as provided in Section 11(m) with respect to an event described in clause (A), (B) or (C) above that occurs before the Distribution Date or as otherwise provided in this Section 11(a~~) and Section 7(e) hereof~~), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such ~~date~~date pursuant to the exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price, or, after a Section 11(a)(2) Event or Section 13 Event, the Adjusted Exercise Price then in ~~effect~~effect (and any applicable transfer taxes), the aggregate number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be, which~~stock that, if such Right had been exercised immediately ~~prior to~~ before such date and at a time when the ~~Preferred Share~~ Common Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs ~~which~~ that would require an adjustment under both ~~this~~ Section ~~11(a)(i~~11(a)(1) and Section ~~11(a)(ii) hereof~~11(a)(2), the adjustment provided for in this Section ~~11(a)(i~~11(a)(1) shall be in addition to, and shall be made ~~prior to~~before, any adjustment required pursuant to Section ~~11(a)(ii) hereof~~11(a)(2). (ii2) A Subject to Section ~~11(a)(ii) Event~~ 24, if any Person shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person ~~is a transaction set forth in~~ (other than pursuant to any Section ~~13(a) hereof. Promptly following~~ 13 Event occurring on or after the ~~first occurrence of a Section 11(a)(ii) Event~~Distribution Date or within 15 days prior thereto), proper provision shall be made so that each holder of a ~~Right (except as provided below and in~~ Right, subject to Section ~~7(e) hereof)~~ 11(a)(3), shall thereafter have ~~the~~ a right to receive, upon exercise thereof at by payment (in lieu of the payment required to be made pursuant to Section 7 to exercise a Right) of an amount equal to the product of (i) the number of one-tenths of a Common Share that would otherwise be issuable upon exercise of a Right after the Distribution Date if no Section 11(a)(2) Event or Section 13 Event had occurred and (ii) ten times the then current Purchase Price for one-tenth of a Common Share that would have been payable in accordance with the terms of this ~~Agreement, in lieu of~~ Agreement if such ~~number of one one-hundredths of a Preferred Share covered by each~~ Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable had been exercised immediately prior to the first occurrence of a Section ~~11(a)(ii~~11(a)(2) Event or Section 13 Event, such number of whole Common Shares of the Company (in lieu of the number of one-tenths of a Common Share for which such Right would have been exercisable after the Distribution Date and prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event) as shall equal the result obtained by (A) multiplying the then-current Purchase Price for one-tenth of a Common Share immediately prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event by ten times the number of one-tenths of a Common Share for which a Right would have been exercisable after the Distribution Date and immediately prior to the first occurrence of a Section 11(a)(2) Event or Section 13 Event and (yB) dividing that product ~~(which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement)~~ by 50% of the then-current per-share market price of the Company’s Common Shares (determined pursuant to Section 11(d)) ~~hereof) per Common Share~~ on the date of such occurrence. The exercise price of a Right determined pursuant to the immediately preceding sentence at the time of the exercise of the Right, after giving effect to any adjustments in the Purchase Price pursuant to this Section 11 but subject to Section 11(a)(3), is referred to in this Agreement as the “Adjusted Exercise Price.” From and after the first occurrence of a Section 11(a)(2) Event or a Section 13 Event, any Rights that are beneficially owned by any Acquiring Person (or any Associate or Affiliate thereof) or were beneficially owned by any Acquiring Person (or any Associate or Affiliate thereof) after the Acquiring Person became an Acquiring Person shall become void without any further action and no holder of such ~~number~~ Rights shall thereafter have any rights to exercise such Rights or any other rights whatsoever with respect to such Rights, whether under this Agreement or otherwise. No Right Certificate shall be issued pursuant to Section 3 that represents Rights that would be void pursuant to the preceding sentence; no Right Certificate shall be issued at any time upon the transfer of ~~shares~~any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate of such an Acquiring Person or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person or any Associate or Affiliate of such Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be canceled. The Company shall use all reasonable efforts to ensure that the provisions of this Section 11(a)(2) are complied with, but shall have no liability to any holder of a Right Certificate or other Person as a result of its failure in good faith to make any determinations with respect to an Acquiring Person or its Affiliates or Associates. (3) If, on the date of the occurrence of a Section 11(a)(2) Event (the “Adjustment ~~Shares~~Date”)~~. (iii) In~~ , the ~~event that the number of Preferred~~ Company does not have sufficient authorized, unissued and unreserved Common Shares ~~which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient~~ available to permit the exercise in full of all Rights that are exercisable on the ~~Rights~~ Adjustment Date for the number of Common Shares per Right provided for in ~~accordance with the foregoing subparagraph (ii) of this~~ Section ~~11(a~~11(a)(2), then the exercise price of a Right and the number of Common Shares to be delivered by the Company ~~shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable~~ upon ~~the~~ exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (further adjusted as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares provided in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv3)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Hutchinson Technology Inc)

Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. ~~(a)~~ The Purchase Price, the number and kind of shares covered by each ~~Right~~ Right, and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (i) In the event the Company ~~shall~~ shall, at any time after the date of this ~~Agreement~~ Agreement, (A) declare a dividend on the ~~Preferred~~ Series A Shares payable in ~~Preferred~~ Series A Shares, (B) subdivide the outstanding ~~Preferred~~ Series A Shares, (C) combine the outstanding ~~Preferred~~ Series A Shares into a smaller number of ~~shares~~Series A Shares, or (D) issue any shares of its capital stock in a reclassification of the ~~Preferred~~ Series A Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, ~~combination~~ combination, or reclassification, and the number and kind of ~~Preferred Shares or~~ shares of capital ~~stock, as the case may be,~~ stock issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to ~~receive, upon payment of the Purchase Price then in effect,~~ receive the aggregate number and kind of ~~Preferred Shares or~~ shares of capital stock~~, as the case may be~~, which, if such Right had been exercised immediately prior to such date and at a time when the ~~Preferred Share~~ Series A Shares transfer books of the Company were open, he such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, ~~combination~~ combination, or reclassification. If an event occurs ~~which would require~~ that requires an adjustment under both this Section 11(a)(i) and Section 11(a)(ii~~) hereof~~), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) A Section 11(a)(ii) Event shall be deemed to occur in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof. Promptly following the first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of such number of one one-hundredths of a Preferred Share covered by each Right immediately prior to the Section 11(a)(ii) event, such number of one one-hundredths of a Preferred Share as shall equal the result obtained by (x) multiplying the then-current Purchase Price by the then-number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d) hereof) per Common Share on the date of such first occurrence (such number of shares, the “Adjustment Shares”). (iii) In the event that the number of Preferred Shares which are authorized by the Company’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Company (including, without limitation, preferred shares, or units of preferred shares, which the Board of Directors of the Company has deemed to have the same value as one one-hundredth of a Preferred Share (such preferred shares, “preferred share equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Preferred Shares (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of this Section 11(a)(iii), the value of one one-hundredth of a Preferred Share shall be deemed to be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the Section 11(a)(ii) Trigger Date and the value of any “preferred share equivalent” shall be deemed to have the same value as one one-hundredth of a Preferred Share on such date. (iv) In lieu of issuing Preferred Shares in accordance with subparagraph (ii) of this Section 11(a), the Company may with respect to each Right, if a majority of members of the Board of Directors determine that such action is in the best interests of the Company and not contrary to the interests of the holders of Rights, make adequate provision to substitute for the Adjustment Shares, (x) upon the surrender for exercise of a Right and payment of the Purchase Price (taking into account any reduction in the Purchase Price pursuant to this subparagraph (iv)) (1) cash, (2) a reduction in Purchase Price, (3) Common Shares, or other equity securities of the Company (including without limitation preferred share equivalents), (4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisers selected by the Board of Directors of the Company or (y) upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, (1) cash, (2) Preferred Shares, Common Shares or other equity securities of the Company (including, without limitation, preferred share equivalents), (3) debt securities of the Company, (4) other assets or (5) any combination of the foregoing, having an aggregate value equal to the Spread where such aggregate value has been determined by the Board of Directors of the Company based upon the advice of one or more investment or financial advisors selected by the Board of Directors of the Company. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Shares (or shares having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or per share of equivalent preferred shares (or having a conversion price per share, if a security convertible into Preferred Share or equivalent preferred share) less than the current market price (as determined pursuant to Section 11(d)(ii) hereof) per share of Preferred Shares on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price, and the denominator of which shall be the number of Preferred Shares outstanding on such record date, plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In case the Company shall fix a record date for a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Shares, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Share and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Shares. Such adjustments shall be made successively whenever such a record-date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (i) For the purpose of any computation hereunder, the “current per share market price” of the Common Shares on any date shall be deemed to be the average of the daily closing prices of the Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price of a Common Share is determined during a period following the announcement by the Company of (A) a dividend or distribution on the Common Shares, payable in Common Shares or securities convertible into Common Shares, or (B) any subdivision, combination or reclassification of the Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, and such announcement shall have caused the closing prices used to determine the current per share market price on any Trading Day during such period not to be fully comparable with the closing price on such date, then, each such closing price so used shall be appropriately adjusted to make it fully comparable with the closing price on such date. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices, as reported by The Nasdaq Stock Market, Inc. (“Nasdaq”), or, if on any such date Common Shares are not quoted by Nasdaq, the average of the closing bid and asked prices as furnished by a professional market maker making a market in Common Shares, selected by the Board of Directors of the Company. If on any such date no market-maker is making a market in Common Shares, the fair value of Common Shares on such date as determined in good faith by the Board of Directors of the Company shall be used, whose determination shall be described in a statement filed with the Rights Agent. The term “Trading Day” shall mean a day on which the principal national securities exchange on which Common Shares are listed or admitted to trading is open for the transaction of business or, if Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day. If Common Shares are not publicly held or so listed or traded, “current per share market price” shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent.

Appears in 1 contract

Sources: Rights Agreement (Ipayment Inc)

Common use of Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights Clause in Contracts