Adjustments to the Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if each Holder participates (other than in the case of a stock split or stock combination), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 12.04, without having to convert its Notes, as if such Holder held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. (a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all shares of Common Stock, or if the Company effects a stock split or stock combination, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 × OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the Effective Date of such stock split or stock combination, as applicable; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination, as applicable. Any adjustment made under this Section 12.04(a) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the Open of Business on the Effective Date for such stock split or stock combination, as applicable. If any dividend, distribution, stock split or stock combination of the type described in this Section 12.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or effect such stock split or stock combination to the Conversion Rate that would then be in effect if such dividend or distribution or stock split or stock combination had not been declared or announced. (b) If the Company issues to all or substantially all holders of Common Stock any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate will be increased based on the following formula: CR1 = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date; X = the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 12.04(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For the purpose of this Section 12.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share price that is less than such average of the Last Reported Sale Prices for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding: (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 12.04(a) or Section 12.04(b) (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 12.04(d);
Appears in 1 contract
Sources: First Supplemental Indenture (Apollo Commercial Real Estate Finance, Inc.)
Adjustments to the Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if each Holder participates (other than in the case of a stock split or stock combination), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 12.04, without having to convert its Notes, as if such Holder held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all shares of Common Stock, or if the Company effects a stock split or stock combination, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 × OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the Effective Date of such stock split or stock combination, as applicable; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination, as applicable. Any adjustment made under this Section 12.04(a) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the Open of Business on the Effective Date for such stock split or stock combination, as applicable. If any dividend, distribution, stock split or stock combination of the type described in this Section 12.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or effect such stock split or stock combination to the Conversion Rate that would then be in effect if such dividend or distribution or stock split or stock combination had not been declared or announced.
(b) If the Company issues distributes to all or substantially all holders of Common Stock any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement declaration date of such issuancedistribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date of announcement of such issuancedistribution, the Conversion Rate will be increased based on the following formula: CR1 = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuancedistribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date; X = the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date of announcement of the issuance distribution of such rights, options or warrants. Any increase made under this Section 12.04(b) ), and for the purpose of Section 12.01(b)(iii)(A), will be made successively whenever any such rights, options or warrants are issued distributed and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuancedistribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issueddistributed, the Conversion Rate shall be readjusted decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance distribution had not occurred. For the purpose of this Section 12.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share price that is less than such average of the Last Reported Sale Prices for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date of announcement of such issuancedistribution, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding:
(i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 12.04(a) or Section 12.04(b) (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 12.04(d);; and
Appears in 1 contract
Sources: First Supplemental Indenture (Renewable Energy Group, Inc.)
Adjustments to the Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if each Holder participates (other than in the case of a stock split or stock combination), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 12.04, without having to convert its Notes, as if such Holder held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all shares of Common Stock, or if the Company effects a stock split or stock combinationcombination (in each case, excluding a distribution solely pursuant to a Common Stock Change Event, as to which Section 12.06 will apply), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 × OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the Effective Date of such stock split or stock combination, as applicable; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination, as applicable. Any adjustment made under this Section 12.04(a) shall become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the Open of Business on the Effective Date for such stock split or stock combination, as applicable. If any dividend, distribution, stock split or stock combination of the type described in this Section 12.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or effect such stock split or stock combination to the Conversion Rate that would then be in effect if such dividend or distribution or stock split or stock combination had not been declared or announced.
(b) If the Company issues to all or substantially all holders of Common Stock any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuanceissuance (other than rights issued or otherwise distributed pursuant to a preferred stock rights plan, as to which Section 12.04(c) and Section 12.09 will apply), the Conversion Rate will be increased based on the following formula: CR1 = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date; X = the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 12.04(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred. For the purpose of this Section 12.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share price that is less than such average of the Last Reported Sale Prices for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of Common Stock, excluding:
(i) dividends, distributions or issuances as to which an adjustment was effected (or would have been effected without regard to the Deferral Exception) pursuant to Section 12.04(a) or Section 12.04(b) )
(ii) rights issued or otherwise distributed pursuant to a preferred stock rights plan, except to the extent provided in Section 12.09;
(iii) dividends or distributions paid exclusively in cash as to which an adjustment was effected (or would have been effected without regard to the Deferral Exception) pursuant to Section 12.04(d);
(iv) cash dividends that do not result in an adjustment to the Conversion Rate pursuant to Section 12.03(d);
(v) a distribution solely pursuant to a Common Stock Change Event, as to which Section 12.06 will apply; and
(vi) Spin-Offs as to which the provisions set forth below in this Section 12.04(c) shall apply, then the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. Any increase made under the portion of this Section 12.04(c) above will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared or on the basis of the rights, options or warrants actually exercised before their expiration date, as applicable. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), then, in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of such Capital Stock, evidences of indebtedness, other assets, property, rights, options or warrants that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Record Date for such distribution. With respect to an adjustment pursuant to this Section 12.04(c) where there has been a payment of a dividend or other distribution on Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, and such Capital Stock or equity interest is, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date of such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to Holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as if references in such definition to the Common Stock were instead to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of such Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. Any increase to the Conversion Rate under the preceding paragraph will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Because the Company will make the adjustment to the Conversion Rate with retroactive effect, the Company will delay the settlement of any conversion of Notes where the Conversion Date (in the case of Physical Settlement) or any Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Valuation Period until the second Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 12.04(c) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
(d) If any cash dividend or distribution is made to all or substantially all holders of Common Stock, to the extent that the aggregate of all such cash dividends or distributions paid in any calendar quarter exceeds the Dividend Threshold Amount for such calendar quarter, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; DTA = the Dividend Threshold Amount, which shall initially be $0.46 per calendar quarter; and C = the amount in cash per share the Company dividends or distributes to holders of the Common Stock in excess of the DTA. The DTA is subject to adjustment on an inversely proportional basis whenever the Conversion Rate is adjusted, other than adjustments made pursuant to this Section 12.04(d) or Section 12.03. Any increase to the Conversion Rate made pursuant to this Section 12.04(d) shall become effective immediately after the Open of Business on the Ex-Dividend Date for the dividend or distribution triggering such adjustment. If such dividend or distribution is not so paid, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), then, in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Record Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of Common Stock on the Trading Day next succeeding the last date (such last date, the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Expiration Date; CR1 = the Conversion Rate in effect immediately after the Close of Business on the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased or exchanged in such tender or exchange offer; OS0 = the number of shares of the Common Stock outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to the purchase or exchange of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of the Common Stock outstanding immediately after the Expiration Time (after giving effect to the purchase or exchange of all shares accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period (the “Averaging Period”) commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate under this Section 12.04(e) will be calculated as of the Close of Business on the last Trading Day of the Averaging Period but will be given effect as of immediately after the Close of Business on the Expiration Date. Because the Company will make the adjustment to the Conversion Rate with retroactive effect, the Company will delay the settlement of any conversion of Notes where the Conversion Date (in the case of Physical Settlement) or any Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Averaging Period until the second Business Day after the last day of the Averaging Period. To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment pursuant to
Appears in 1 contract
Sources: Third Supplemental Indenture (Apollo Commercial Real Estate Finance, Inc.)
Adjustments to the Conversion Rate. The applicable Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if each Holder participates (other than in the case of a stock split or stock combination), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 12.04, without having to convert its Notes, as if such Holder held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.follows:
(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company effects a stock share split or stock share combination, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 × OS1 OS0 x (OS1/OS0) where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of for such dividend or distribution, or immediately prior to the Open of Business on the Effective Date effective date of such stock share split or stock share combination, as applicablethe case may be; CR1 = the new Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date for such dividend or Effective Datedistribution, or the effective date of such share split or share combination, as applicablethe case may be; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date for such dividend or Effective Datedistribution, or the effective date of such share split or share combination, as applicablethe case may be; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, dividend or distribution, stock or the effective date of such share split or stock share combination, as applicablethe case may be. Any Such adjustment made under this Section 12.04(a) shall become effective on the date that is immediately after the Open of Business on (i) the Ex-Dividend Date for such dividend or distribution, or immediately after (ii) the Open of Business date on the Effective Date for which such stock split or stock combinationcombination becomes effective, as applicable. If any dividend, distribution, stock split dividend or stock combination distribution of the type described in this Section 12.04(a12.02(a) is declared but not so paid or made, the new Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or effect such stock split or stock combination adjusted to the Conversion Rate that would then be in effect if such dividend or distribution or stock split or stock combination had not been declared or announceddeclared.
(b) If the Company issues distributes to all or substantially all holders of its Common Stock any rights, warrants, options or warrants (other than rights issued pursuant securities entitling them to a stockholder rights plan) entitling thempurchase, for a period of not more than 45 calendar forty five (45) days after the announcement date of such issuanceEx-Dividend Date for the distribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 ten (10) consecutive Trading Day period ending on, and including, on the Trading Day immediately preceding the date of announcement of Ex-Dividend Date for such issuancedistribution, the Conversion Rate will be increased adjusted based on the following formula: CR1 = CR0 × x ((OS0 + X X) / (OS0 + Y Y)) where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on Ex-Dividend Date for such distribution; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such issuance; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Datedistribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend DateDate for such distribution; X = the total number of shares of the Common Stock issuable pursuant to such rightsrights or warrants, options or warrantsother securities; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options or warrantsother securities, divided by and (B) the average of the Last Reported Sale Prices of the Common Stock over the 10 ten (10) consecutive Trading Day period ending on, and including, on the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. Any increase made under this Section 12.04(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuancedistribution. To If the extent that application of the formula set forth in this Section 12.02(b) would result in a decrease in the Conversion Rate, the Company shall make no adjustment to the Conversion Rate. For purposes of this Section 12.02(b), in determining whether any rights, warrants, options or other securities entitle the Holders to subscribe for or purchase, or exercise a conversion right for, shares of Common Stock are at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, warrants, options or other securities, and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors. If any right, warrant, option or other security described in this Section 12.02(b) is not delivered after exercised or converted prior to the expiration of such rights, options the exercisability or warrantsconvertibility thereof, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right, warrant, option or other security had not been so issued. Any adjustment made pursuant to this Section 12.02(b) shall become effective immediately after the Ex-Dividend Date for such issuance had not occurred. For the purpose of this Section 12.04(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at a price per share price that is less than such average of the Last Reported Sale Prices for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directorsapplicable distribution.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, indebtedness or other assets or property of the Company or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding:
(i) dividends, distributions distributions, rights, warrants, options or issuances as other securities referred to which an adjustment was effected pursuant to Section 12.04(ain clause (a) or Section 12.04(b(b) above;
(ii) dividends or distributions paid exclusively in cash as referred to in paragraph (d) below; and
(iii) Spin-Offs, to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x (SP0/(SP0-FMV) where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Values (as determined in good faith by the Board of Directors of the Company) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock over the ten (10) consecutive Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment was effected pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of, relating to, or with respect to a Subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the Spin-Off will be increased based on the following formula: CR1 = CR0 x ((FMV0 + MP0)/MP0) where, CR0 = the Conversion Rate in effect immediately prior to the tenth (10th) Trading Day immediately following, and including, the effective date of the Spin-Off; CR1 = the new Conversion Rate in effect immediately after the tenth (10th) Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten (10) consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first ten (10) consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth (10th) Trading Day immediately following, and including, the effective date of the Spin-Off provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten (10) Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to “Spin-Offs” to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x (SP0/(SP0-C) where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock distributed to holders of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula: CR1 = CR0 x (AC + (SP1 x OS1))/(SP1 x OS0) where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR1 = the new Conversion Rate in effect immediately following the last Trading Day of the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Company’s Board of Directors) paid or payable for the shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer; OS1 = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of Common Stock over the ten (10) consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth (10th) Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten (10) Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Without limiting the foregoing provisions of this Section 12.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s securities as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such holder, without having to convert its Securities. Further, if the application of the foregoing formulae in this Section 12.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 12.02 and in Section 12.03. Further, in the event of an adjustment to the Conversion Rate pursuant to Section 12.04(d12.02(d) or Section 12.02(e), in no event will the Conversion Rate exceed 71.09 shares of Common Stock per One Thousand Dollars ($1,000) principal amount of Securities, subject to adjustment pursuant to clauses (a), (b) or (c) above. For the avoidance of doubt, this cap on the Conversion Rate will not apply to an adjustment to the Conversion Rate pursuant to Section 12.02(a), Section 12.02(b) and Section 12.02(c).
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any public or private offering;
(ii) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(iii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employment agreement or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iv) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, convertible or exchangeable security not described in clause (ii) above and outstanding as of the Issue Date;
(v) for a change in the par value of the Common Stock;
(vi) for accrued and unpaid dividends or Interest; or
(vii) as a result of a tender offer solely to holders of fewer than 100 shares of the Company’s Common Stock.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least one percent (1%), then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or one one-thousandth (1/1000th) of a share of Common Stock, as the case may be. Notwithstanding the foregoing, if the Securities are called for redemption, all adjustments not made on or prior to the date thirty (30) days prior to the applicable Redemption Date will be made effective as of such date thirty (30) days prior to such Redemption Date.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder o
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Sources: First Supplemental Indenture (Veeco Instruments Inc)