Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of: (i) any recapitalization, reclassification or change of Common Stock (other than changes resulting from a subdivision or combination), (ii) any consolidation, merger or combination involving the Company, (iii) any sale, lease or other transfer of the consolidated assets of the Company and the Company’s Subsidiaries, or (iv) any statutory share exchange, in each case, as a result of which Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, the Reference Property includes shares of stock or other securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the repurchase rights set forth in Article 15. (b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. (c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness of such Merger Event. (d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Sources: Indenture (Cantel Medical Corp)
Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:of the following events (each, a “Business Combination”):
(ia) any recapitalization, reclassification or change of the Common Stock (Stock, other than changes resulting (A) a change in par value, or from par value to no par value, or from no par value to par value, or (B) as a result of a subdivision or combination),a combination of the Common Stock;
(iib) any consolidation, merger or combination involving to which the Company,Company is a party;
(iiic) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s its Subsidiaries, ; or
(ivd) any statutory share exchange, ; in each case, case as a result of which holders of Common Stock would be converted into, or exchanged for, are entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (any which shall comply with the Trust Indenture Act as in force at the date of execution of such event, a “Merger Event”), then, at supplemental indenture if such supplemental indenture is then required to so comply) providing that from and after the effective time date of such Merger Eventthe Business Combination, the right settlement of the Company’s obligations to convert each $1,000 principal amount Securities in accordance with the provisions of Notes Section 9.03 shall be changed into a right to convert based on, and each share of Common Stock deliverable in respect of any such principal amount of Notes into settlement shall consist of, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares which holders of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been are entitled to receive (the “Reference Property,” with in respect of each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness Business Combination. For purposes of the Merger Event (A) foregoing, where a Business Combination involves a transaction that causes the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes consideration will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after Stock that affirmatively make such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14election. If, in the case of any Merger Eventsuch Business Combination, the Reference Property stock or other securities and assets receivable thereupon by a holder of shares of Common Stock includes shares of stock or other securities or other property or and assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporationPerson, as the case may be, in such Merger Eventthe Business Combination, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase purchase rights set forth in Article 158 hereof. The Company shall not become a party to any Business Combination unless its terms are materially consistent with the provisions of this Section 9.09. The above provisions of this Section 9.09 shall similarly apply to successive Business Combinations. None of the provisions of this Section 9.09 shall affect the right of a Holder of Securities to convert its Securities in accordance with the provisions of this Article 9 prior to the effective date of a Business Combination. If this Section 9.09 applies to any event or occurrence, Section 9.04 hereof shall not apply.
(b) In the event If the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.079.09, the Company shall promptly file with the Trustee (i) an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto therefor and that all conditions precedent have been complied with and (ii) an Opinion of Counsel to the effect that all conditions precedent thereto and hereunder have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause mail notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereofall Holders. Failure to deliver mail such notice or any defect therein shall not affect the legality or validity of such transaction and such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:of the following events (each, a “Business Combination”):
(i) any recapitalization, reclassification or change of the Common Stock (Stock, other than changes resulting (A) a change in par value, or from par value to no par value, or from no par value to par value, or (B) as a result of a subdivision or combination),a combination of the Common Stock;
(ii) any consolidation, merger or combination involving to which the Company,Company is a party;
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s its Subsidiaries, ; or
(iv) any statutory share exchange, ; in each case, case as a result of which holders of Common Stock would be converted into, or exchanged for, are entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for Common Stock, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee (without the consent of any such eventof the Holders), in accordance with the provisions of the Indenture, a “Merger Event”)supplemental indenture (which the Company shall ensure complies, thenand which shall comply, with the Trust Indenture Act as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that (x) from and after the effective time date of such Merger Eventthe Business Combination, the right to convert each $1,000 principal amount settlement of Notes the Conversion Obligation in accordance with the provisions of Section 9.03, the payment of Additional Shares in accordance with the provisions of Section 9.05 and the delivery of Common Stock in accordance with the provisions of Sections 2.01(g), 3.06(c), 3.07 or 9.06, shall be changed into a right to convert based on, and each Conversion Share, Additional Share or other share of Common Stock deliverable in respect of any such principal amount settlement, payment or delivery shall consist of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares which holders of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been are entitled to receive (the “Reference Property,” with in respect of each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receiveupon the Business Combination; and (y) upon such Merger Event and, prior to or at the effective time rights and obligations of such Merger Event, the Company (or the successor or purchasing Person, as specified below) and the case Holders in respect of such stock or other securities or assets shall be as nearly equivalent as may be, shall execute with be practicable to the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at rights and after the effectiveness obligations of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes and Holders in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares respect of Common Stock that the Company would have been required to deliver upon conversion hereunder as set forth herein. For purposes of the Notes in accordance with Section 14.02 shall instead be deliverable in foregoing, where a Business Combination involves a transaction that causes the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes consideration will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after Stock that affirmatively make such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14election. If, in the case of any Merger Eventsuch Business Combination, the Reference Property stock or other securities and assets receivable thereupon by a holder of shares of Common Stock includes shares of stock or other securities or other property or and assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporationPerson, as the case may be, in such Merger Eventthe Business Combination, then such supplemental indenture shall also be executed by such other Person Person. The Company shall ensure that such supplemental indenture contain, and such supplemental indenture shall contain contain, such additional provisions to protect the interests of the Holders of the Notes Securities as the Board of Directors shall be reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase purchase rights set forth in Article 15VIII hereof and the rights with respect to delivery of Common Stock set forth in Sections 2.01(g), 3.06(c), 3.07, 9.05 and 9.06 hereof and provide for adjustments which, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article IX. The Company shall not become a party to any Business Combination unless its terms are materially consistent with the provisions of this Section 9.10. The above provisions of this Section 9.10 shall similarly apply to successive Business Combinations. None of the provisions of this Section 9.10 shall affect the right of a Holder of Securities to convert its Securities in accordance with the provisions of this Article IX prior to the effective date of a Business Combination. If this Section 9.10 applies to any event or occurrence, Section 9.04 hereof shall not apply.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.079.10, the Company shall promptly file simultaneously with the Trustee (i) an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto therefor and that all conditions precedent to the transaction described in this Section 9.10 and to the execution and delivery of the supplemental indenture have been complied with and (ii) an Opinion of Counsel to the effect that all such conditions precedent thereto and hereunder have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause mail notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereofall Holders. Failure to deliver mail such notice or any defect therein shall not affect the legality or validity of such transaction and such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision share split or share combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries, substantially as an entirety or
(iv) any statutory share exchange, in each case, case as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, securities or other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, stock or other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness effective time of the such Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, Settlement Method upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the such Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible or that will be used to calculate the Daily VWAP, as the case may be, shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common StockStock that affirmatively make such an election, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness effective date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business third Scheduled Trading Day immediately following the Conversion Date. The Company shall notify in writing all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, the Reference Property includes shares of stock or other stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the repurchase purchase rights set forth in Article 15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.0714.07(a), the Company shall promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefortherefore, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the any right of that a holder of Notes may have to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) In connection with any Merger Event, the Initial Dividend Threshold shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may be.
(i) In the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of common stock (the “Merger Common Stock”), the Initial Dividend Threshold at and after the effective time of such Merger Event shall be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such Merger Event divided by (y) the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in such Merger Event (such quotient rounded down to nearest cent).
(ii) In the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the Initial Dividend Threshold at and after the effective time of such Merger Event shall be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such Merger Event multiplied by (y) the Merger Valuation Percentage for such Merger Event (such product rounded down to nearest cent).
(iii) For the avoidance of doubt, in the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of common stock, the Initial Dividend Threshold at and after the effective time of such Merger Event shall be equal to zero.
(f) For purposes of subsection (e) of this Section 14.07, the following terms shall have the following meanings:
(i) The “Merger Valuation Percentage” for any Merger Event shall be equal to (x) the arithmetic average of the Last Reported Sale Prices of one share of such Merger Common Stock over the relevant Merger Valuation Period (determined as if references to “Common Stock” in the definition of “Last Reported Sale Price” were references to the “Merger Common Stock” for such Merger Event) divided by (y) the arithmetic average of the Last Reported Sale Prices of one share of Common Stock over the relevant Merger Valuation Period.
Appears in 1 contract
Sources: Indenture (Tower Group, Inc.)
Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries, Subsidiaries substantially as an entirety or
(iv) any statutory share exchange, in each case, case as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, securities or other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receivewould have received) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness effective time of the such Merger Event Event
(A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, Settlement Method upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would otherwise have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common StockStock that affirmatively make such an election, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify all Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, the Reference Property includes shares of stock or other stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the repurchase purchase rights set forth in Article 15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file with the Trustee, in addition to the other documents required to be delivered to the Trustee hereunder in connection with the execution of a supplemental indenture, an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
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Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:of the following events (each, a “Business Combination”):
(i) any recapitalization, reclassification or change of the Common Stock (Stock, other than changes resulting (A) a change in par value, or from par value to no par value, or from no par value to par value, or (B) as a result of a subdivision or combination),
(ii) a combination of the Common Stock; any consolidation, merger or combination involving to which the Company,Company is a party;
(iiiii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s its Subsidiaries, ; or
(iviii) any statutory share exchange, ; in each case, case as a result of which holders of Common Stock would be converted into, or exchanged for, are entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (any which shall comply with the Trust Indenture Act as in force at the date of execution of such event, a “Merger Event”), then, at supplemental indenture if such supplemental indenture is then required to so comply) providing that from and after the effective time date of such Merger Eventthe Business Combination, the right settlement of the Company’s obligations to convert each $1,000 principal amount Securities in accordance with the provisions of Notes Section 9.03 shall be changed into a right to convert based on, and each share of Common Stock deliverable in respect of any such principal amount of Notes into settlement shall consist of, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares which holders of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been are entitled to receive (the “Reference Property,” with in respect of each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness Business Combination. For purposes of the Merger Event (A) foregoing, where a Business Combination involves a transaction that causes the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes consideration will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after Stock that affirmatively make such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14election. If, in the case of any Merger Eventsuch Business Combination, the Reference Property stock or other securities and assets receivable thereupon by a holder of shares of Common Stock includes shares of stock or other securities or other property or and assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporationPerson, as the case may be, in such Merger Eventthe Business Combination, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase purchase rights set forth in Article 15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders8 hereof. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event Business Combination unless its terms are materially consistent with the provisions of this Section 14.079.09. The above provisions of this Section 9.09 shall similarly apply to successive Business Combinations. None of the foregoing provisions of this Section 9.09 shall affect the right of a holder Holder of Notes Securities to convert its Notes into cash, shares Securities in accordance with the provisions of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 this Article 9 prior to the effectiveness effective date of such Merger Event.
(d) The above provisions of a Business Combination. If this Section 9.09 applies to any event or occurrence, Section 9.04 hereof shall similarly apply to successive Merger Eventsnot apply.
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Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change in par value, or from par value to no par value or from no par value to par value, or changes resulting from a split, subdivision or combinationcombination of Common Stock),;
(ii) any consolidation, merger or combination involving the Company,; or
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s its Subsidiaries, taken as a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, for stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Common Stock Change Event” and such stock, other securities, other property or assets (including any cash or any combination thereof), the “Reference Property” and the amount and the kind of Reference Property that a holder of one share of Common Stock immediately prior to such Common Stock Change Event would be entitled to receive upon the occurrence of such Common Stock Change Event, a “Reference Property Unit”), thenthen the Company, or the successor or purchasing corporation, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Common Stock Change Event, the right to convert each $1,000 principal amount of Notes shall will be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) Reference Property that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Common Stock Change Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of upon such Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness effective time of the Merger Event such Common Stock Change Event:
(A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and 5.02; and
(B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 5.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 5.02 shall instead be deliverable in the amount and type of Reference Property Units that a holder of that number of shares of Common Stock would have been entitled to receive received in such Merger Common Stock Change Event and (III) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; provided, however, that if the holders of Reference PropertyCommon Stock receive only cash in such Common Stock Change Event, then for all conversions that occur after the effective time of such Common Stock Change Event (x) the consideration due upon conversion of each $1,000 principal aggregate amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 5.03), multiplied by the price paid per share of Common Stock in such Common Stock Change Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second Business Day immediately following the Conversion Date. If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be based on: (A) the weighted average average, per share of Common Stock, of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election; and (B) if no holder of Common Stock affirmatively make such an election, the types and amounts of consideration actually received, per share of Common Stock, and (ii) by the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share holder of Common Stock. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as reasonably practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, V. If the Reference Property in respect of any Common Stock Change Event includes shares of stock or stock, other securities or other property or assets (including cash or any combination thereof) of a Person an entity other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such other entity, if it is a party to such Common Stock Change Event, shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders, including the right of Holders of to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article IV, as the Board of Directors or a committee thereof shall reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the repurchase rights set forth in Article 15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.075.07(a), the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset other assets (including any combination thereof) that will comprise the Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be mailed sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) In connection with any adjustment of the Conversion Rate as described in this Section 5.07, the Company will also adjust the DTA based on the number of shares of Common Stock comprising the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property. If the Reference Property is solely composed of non-stock consideration the DTA will be zero.
(d) The Company shall not become a party to any Merger Common Stock Change Event unless its terms are consistent with this Section 14.075.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 5.01 and Section 14.02 5.02 prior to the effectiveness effective date of such Merger Common Stock Change Event.
(de) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications, and Changes of Common Stock. (a) In the case of:of the following events (each, a “Business Combination”):
(i) any recapitalization, reclassification or change of the Common Stock (Stock, other than changes resulting (A) a change in par value, or from par value to no par value, or from no par value to par value, or (B) as a result of a subdivision or combination),a combination of the Common Stock;
(ii) any consolidation, merger or combination involving to which the Company,Company is a party;
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s its Subsidiaries, ; or
(iv) any statutory share exchange, ; in each case, case as a result of which holders of Common Stock would be converted into, or exchanged for, are entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (any which shall comply with the Trust Indenture Act as in force at the date of execution of such event, a “Merger Event”), then, at supplemental indenture if such supplemental indenture is then required to so comply) providing that from and after the effective time date of such Merger Eventthe Business Combination, the right to convert each $1,000 principal amount settlement of Notes the Conversion Obligation in accordance with the provisions of Section 9.03 shall be changed into a right to convert based on, and each Conversion Share deliverable in respect of any such principal amount of Notes into settlement shall consist of, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares which holders of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been are entitled to receive (the “Reference Property,” with in respect of each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(h) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effectiveness Business Combination. For purposes of the Merger Event (A) foregoing, where a Business Combination involves a transaction that causes the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes consideration will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after Stock that affirmatively make such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effectiveness of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14election. If, in the case of any Merger Eventsuch Business Combination, the Reference Property stock or other securities and assets receivable thereupon by a holder of shares of Common Stock includes shares of stock or other securities or other property or and assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporationPerson, as the case may be, in such Merger Eventthe Business Combination, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase purchase rights set forth in Article 158 hereof. The Company shall not become a party to any Business Combination unless its terms are materially consistent with the provisions of this Section 9.10. The above provisions of this Section 9.10 shall similarly apply to successive Business Combinations. None of the provisions of this Section 9.10 shall affect the right of a Holder of Securities to convert its Securities in accordance with the provisions of this Article 9 prior to the effective date of a Business Combination. If this Section 9.10 applies to any event or occurrence, Section 9.04 hereof shall not apply.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.079.10, the Company shall promptly file with the Trustee (i) an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto therefor and that all conditions precedent have been complied with and (ii) an Opinion of Counsel to the effect that all conditions precedent thereto and hereunder have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause mail notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereofall Holders. Failure to deliver mail such notice or any defect therein shall not affect the legality or validity of such transaction and such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effectiveness of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
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