Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of: (i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination); (ii) any consolidation, merger or other combination involving the Company; or (iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Person, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing. (b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website. (d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event. (e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 2 contracts
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In Subject to Section 13.02, Section 14.01, Section 15.01, Section 15.02 and Section 15.03, in the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 eventeach, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing PersonSuccessor Company, as the case may be, will shall execute with the Trustee, Trustee a supplemental indenture permitted under Section 10.01(n) without the consent of the Holders, a supplemental indenture Holders providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares (or if a PIK Payment has been made, each $1.00 principal amount of Common Stock will Notes) shall be changed into a right to convert such principal amount of Notes for 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 into which $1,000 (or if a PIK Payment has been made, $1.00) principal amount of the Notes is convertible at the Conversion Rate immediately prior to such Specified Corporate Event (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event and (2) 1,000) 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 a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Specified Corporate Event; provided, however, that at and after the effective time occurrence of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and ) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such If the Reference Property in respect of any such transaction includes shares of Common Equity, such supplemental indenture described in the second immediately preceding paragraph providing that the Notes will be convertible into reference property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person that is a party to the transaction other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.08, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental indenture have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 14.01, Section 14.02 and Section 14.02 14.03, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 2 contracts
Sources: Indenture (Bloom Energy Corp), Indenture (Bloom Energy Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change Fundamental Change described in clause (b) of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination)definition thereof;
(ii) any consolidation, merger or other combination involving reclassification of the Company; orCommon Stock;
(iii) any salea consolidation, lease binding share exchange, recapitalization, reclassification, merger, combination or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, taken as a wholesimilar event; or
(iv) any statutory share exchangea sale or conveyance to another Person of all or substantially of the Company’s property and assets, in each case, as a result of which the Common Stock would be converted into, or exchanged for stockfor, other securitiescash, securities or other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof”), Holders shall be entitled to convert each $1,000 principal amount of Notes into the same type of consideration that Holders would have been entitled to receive if such Holders had held a number of shares of Common Stock equal to the applicable Conversion Rate in effect immediately prior to such Merger Event (such consideration, the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock is entitled to receive) and, if immediately following such Merger Event (i) any Person other than, or in addition to, NuVasive, Inc. would be an obligor on the Notes or (ii) the Reference Property would include any shares of stock or other securities issued by any Person other than NuVasive, Inc., then prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(j) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
4.02 and (B) (IB)(1) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 4.02 shall continue to be payable in cash, (II2) 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 4.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III3) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty in such Merger Event. For purposes of the foregoing, howeverif the Merger Event causes the Common Stock to be converted into, that if or exchanged for, more than a single type of consideration, determined based in part upon any form of stockholder election, then the Reference Property will be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amount of consideration actually received by such holders. 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 receive only cash in any such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate Merger 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 14.034.04), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (y) the Company shall satisfy the its Conversion Obligation by paying such cash to the converting Holder Holders on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. Such Any supplemental indenture described in the second third 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 144. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company us or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 rights of Holders set forth in Article 3.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)4.07, the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register register of the Registrar provided for in this IndentureIndenture (or in the case of Global Notes, electronically in accordance with the Applicable Procedures), within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.074.07. 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 4.01 and Section 14.02 4.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section 4.07 shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Nuvasive Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change Fundamental Change described in clause (b) of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination)definition thereof;
(ii) any consolidation, merger or other combination involving reclassification of the Company; orCommon Stock;
(iii) any salea consolidation, lease binding share exchange, recapitalization, reclassification, merger, combination or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, taken as a wholesimilar event; or
(iv) any statutory share exchangea sale or conveyance to another Person of all or substantially of the Company’s property and assets, in each case, as a result of which the Common Stock would be converted into, or exchanged for stockfor, other securitiescash, securities or other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof”), Holders shall be entitled to convert each $1,000 principal amount of Notes into the same type of consideration that Holders would have been entitled to receive if such Holders had held a number of shares of Common Stock equal to the applicable Conversion Rate in effect immediately prior to such Merger Event (such consideration, the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock is entitled to receive) and, if immediately following such Merger Event (i) any Person other than, or in addition to, NuVasive, Inc. would be an obligor on the Notes or (ii) the Reference Property would include any shares of stock or other securities issued by any Person other than NuVasive, Inc., then prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(i) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
4.02 and (B) (IB)(1) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 4.02 shall continue to be payable in cash, (II2) 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 4.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III3) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty in such Merger Event. For purposes of the foregoing, howeverif the Merger Event causes the Common Stock to be converted into, that if or exchanged for, more than a single type of consideration, determined based in part upon any form of stockholder election, then the Reference Property will be deemed to be (x) the weighted average of the types and amounts of consideration actually received by the holders of Common Stock 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 receive only cash in any such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate Merger 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 14.034.04), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (y) the Company shall satisfy the its Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. Such Any supplemental indenture described in the second third 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 144. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company us or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 rights of Holders set forth in Article 3.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)4.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register register of the Registrar provided for in this IndentureIndenture (or in the case of Global Notes, electronically in accordance with the Applicable Procedures), within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.074.07. 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 4.01 and Section 14.02 4.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section 4.07 shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Nuvasive Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” Transaction”), then, at and any after the effective time of such Specified Transaction, 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, 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 Specified Transaction would have owned or been entitled to receive upon such Specified Transaction (the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate EventTransaction, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(k) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
Transaction (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 otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash; (B) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted in accordance with Section 14.02; (IIC) any the number of shares of Common Stock that the Company would have been required to deliver Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event Transaction and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty . If such Specified Transaction causes the Common Stock to be converted into, howeveror exchanged for, that 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) of such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Specified Corporate EventTransaction, then for all conversions that occur after the effective date of such Specified Corporate Event Transaction (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event Transaction and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 If, in the case of any Specified Transaction, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate EventTransaction, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate EventTransaction, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event Transaction unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate EventTransaction.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate EventsTransactions.
(e) Upon the consummation of any Specified Transaction, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Specified Transaction.
Appears in 1 contract
Sources: Indenture (Akamai Technologies Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to only in par value, or from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combinationcombination of the Common Stock);,
(ii) any consolidation, consolidation or merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, 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, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof)assets, the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been be entitled to receive upon the occurrence on account of such Specified Corporate Eventtransaction, a “Unit of Reference PropertyProperty Unit”) (and any such recapitalization, reclassification, change, consolidation, merger, sale, lease, transfer or exchange, a “Share Exchange Event”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture (which will be permitted under Section 801(f), Section 801(f) or Section 801(g)) providing that, at and after the effective time of the Specified Corporate such Share Exchange Event, the right to convert each $1,000 principal amount of Notes for a Note into cash and/or shares of Common Stock will shall be changed into a the right to convert such principal amount of Notes for the kind and amount of Note into cash and/or Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventUnits; provided, however, that at and after the effective time of such Specified Corporate Event:
the Share Exchange 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
1002 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 1002 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 1002 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event Units and (III) the Daily VWAP shall be calculated based on the value of a Reference Property Unit. For these purposes, the Daily VWAP or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of Reference Property; provided, however, that if a class of securities will be the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date fair value of such Specified Corporate Event (x) the consideration due upon conversion of each $1,000 principal aggregate amount of Notes shall be solely cash Reference Property Unit or portion thereof, as applicable, determined 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 good faith by the price paid per share Company (or, in the case of Common Stock cash denominated in such Specified Corporate Event and (y) U.S. dollars, the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second Business Day immediately following the Conversion Dateface amount thereof). If the Specified Corporate Share Exchange 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 the composition of the Reference Property into which the Notes shall Unit will be convertible shall deemed to be (i) the weighted average average, per share of Common Stock, of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received received, per share of Common Stock, by the holders of Common Stock. If the holders of Common Stock receive only cash in such Share Exchange Event, then for all conversions of Notes that occur after the effective date of such Share Exchange Event, (i) the consideration due upon conversion of each $1,000 principal amount of Notes shall, for the avoidance of doubt, be solely cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date (as, for the avoidance of doubt, may be increased pursuant to Section 1003), multiplied by the price paid per share of Common Stock in such Share Exchange Event and (ii) the Company shall satisfy its Conversion Obligations by paying cash to converting Holders on the third Business Day immediately following the applicable Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average composition of the Reference Property Unit as soon as practicable after such determination is made. 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 14Ten. If If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article Eleven.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)1006, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or and amount of cash, securities or other assets (including any combination thereof) that will comprise Reference Property constituting the Reference Property after any such Specified Corporate the relevant Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 twenty (20) calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.071006. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock (or other Reference Property) or a combination of cash and shares of Common StockStock (or other Reference Property), as applicable, as set forth in Section 14.01 1001 and Section 14.02 1002 prior to the effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock cash 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Itron, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shall 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. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) 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, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify 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. Such If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, 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 14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any such Specified Corporate Event Merger Event, the Reference Property includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) ), other than cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing Personentity, as the case may be, in such Specified Corporate Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change shall in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change Fundamental Change described in clause (b) of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination)definition thereof;
(ii) any consolidation, merger or other combination involving reclassification of the Company; orCommon Stock;
(iii) any salea consolidation, lease binding share exchange, recapitalization, reclassification, merger, combination or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, taken as a wholesimilar event; or
(iv) any statutory share exchangea sale or conveyance to another Person of all or substantially of the Company’s property and assets, in each case, as a result of which the Common Stock would be converted into, or exchanged for stockfor, other securitiescash, securities or other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof”), Holders shall be entitled to convert each $1,000 principal amount of Notes into the same type of consideration that Holders would have been entitled to receive if such Holders had held a number of shares of Common Stock equal to the applicable Conversion Rate in effect immediately prior to such Merger Event (such consideration, the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock is entitled to receive) and, if immediately following such Merger Event (i) any Person other than, or in addition to, NuVasive, Inc. would be an obligor on the Notes or (ii) the Reference Property would include any shares of stock or other securities issued by any Person other than NuVasive, Inc., then prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(i) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
4.02 and (B) (IB)(1) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 4.02 shall continue to be payable in cash, (II2) 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 4.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III3) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty in such Merger Event. For purposes of the foregoing, howeverif the Merger Event causes the Common Stock to be converted into, that if or exchanged for, more than a single type of consideration, determined based in part upon any form of stockholder election, then the Reference Property will be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock 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 receive only cash in any such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate Merger 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 14.034.04), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (y) the Company shall satisfy the its Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. Such Any supplemental indenture described in the second third 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 144. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company us or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 rights of Holders set forth in Article 3.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)4.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register register of the Registrar provided for in this IndentureIndenture (or in the case of Global Notes, electronically in accordance with the Applicable Procedures), within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.074.07. 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 4.01 and Section 14.02 4.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section 4.07 shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Nuvasive Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then then, at the Companyeffective time of such Merger Event, the Company or the successor or purchasing Personacquiring corporation, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, that at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Specified Corporate Merger Event; provided, however, that at and after the effective time of such Specified Corporate Event:
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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.execution
Appears in 1 contract
Sources: Indenture (Western Digital Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing PersonSuccessor Company, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate 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 Specified Corporate Event; provided, howevertogether with any applicable Interest Make-Whole Payment, that and, prior to or at and after the effective time of such Specified Corporate Event:
(A) , the Company shall continue to have or the right to determine the form of consideration to be paid successor or deliveredpurchasing Person, as the case may be, upon conversion shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes in accordance with Section 14.02; and
(B) (I) any amount payable in cash upon conversion Notes. At and after the effective time of the Notes in accordance with Section 14.02 shall continue to be payable in cash, Specified Corporate Event: (IIA) 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 (including an Interest Make-Whole Payment, if applicable) shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Event Event, (B) any Warrants that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be exercisable for the amount and the type of Reference Property that a holder of that number of Warrants would have been entitled to receive in such Specified Corporate Event, and (IIIC) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty that a holder of one share of the Common Stock would have received in such Specified Corporate Event. If the Specified Corporate Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event Event, together with any Interest Make-Whole Payment that is payable in respect of such conversions (which shall be payable solely in cash) and (yB) the Company shall satisfy the Conversion Obligation and any Interest Make-Whole Payment by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify 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. Such If the Reference Property in respect of any such Specified Corporate Event includes shares of common equity, 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 If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate 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 Holders of the right of Holders to require Notes as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoingor appropriate.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly provide the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent given 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. The Company may elect at its sole discretion to have the Trustee deliver such notice on the Company’s behalf and at the Company’s sole expense.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash to the extent provided and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Egalet Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second third Business Day immediately following the Conversion Date. If the Specified Corporate 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 holder election), then the Reference Property into which used to calculate the Notes Daily VWAP shall be convertible shall deemed to be based on: (A) the weighted average of the types and amounts of consideration 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 by the holders holder of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election as soon as practicable after such determination is made. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing or publish the relevant information or disclose the relevant information in on a Current Report on Form 8-K and (ii) post such information on the Company’s website.K.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rate described this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any a consolidation, merger merger, combination, binding share exchange or other combination similar transaction involving the Company; or;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer or disposition to a third party of all or substantially all another Person of the Company’s property and its Subsidiaries’ consolidated assets, taken assets as a wholean entirety or substantially as an entirety; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would are entitled to receive cash, securities or other property for their shares of Common Stock (“Reference Property” and any such transaction, a “Share Exchange Event”), the Company or the successor or purchasing company , as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Share Exchange Event, Holders of each $1,000 principal amount of Notes shall be converted into, or exchanged for entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 Share Exchange Event would have owned or been entitled to receive (any such event, a “Specified Corporate Event” the kind and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been is entitled to receive upon the occurrence of such Specified Corporate Eventreceive, a “Unit unit of Reference Property”)) upon such Share Exchange Event. If the Notes become convertible into Reference Property pursuant to this Section 14.05, then the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of if the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have has been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 replaced by Reference Property in accordance with this Section 14.02; and
(B) (I) 14.05 as a result of any amount payable in cash upon conversion Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the Notes supplemental indenture described 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Datethis paragraph. If the Specified Corporate Share Exchange 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 because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the HoldersHolders of the Notes, including the right of Holders to require provisions providing for the Company to repurchase their Notes upon a Fundamental Change rights set forth in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.05, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent given to each Holder, at its address appearing on the Note Register provided for in this Indentureaccordance with Section 19.03, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.0714.05. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 a number one share of shares of the Common Stock equal is entitled to the Conversion Rate immediately receive) upon such Merger Event and, prior to or at the effective time of such Specified Corporate Event would have been entitled 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 10.02(g) providing for such change in the right to receive upon such Specified Corporate Eventconvert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company shall continue to have the right to determine the form of consideration elect Physical Settlement, Cash Settlement, or Combination Settlement, with respect to be paid or delivered, as the case may be, upon conversion conversions of Notes in accordance with Section 14.02; and
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Event and Merger Event, (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property and (IV) the conditions to conversion set forth in Section 14.01(b) will be determined as if each reference to a share of Common Stock were instead a reference to a unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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) of the composition of a unit of Reference Property as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the cash price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to converting Holders on or before the converting Holder on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 1414 in a manner that the Company reasonably deems appropriate to preserve the economic interests of Holders. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other person and such supplemental indenture shall contain such additional provisions to protect the interests of Holders of the Holders, including the right of Holders to require Notes as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07 and in accordance with Section 10.06, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into cash, shares of Common Stock (or other Reference Property, if applicable) or a combination of cash and shares of Common StockStock (or other Reference Property, if applicable), as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
(e) For purposes of the definition of “Fundamental Change,” upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Capital Stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, or a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Verint Systems Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the right to convert each $1,000 Original Principal Amount of Notes shall be changed into a right to convert such Original Principal Amount of Notes into the kind and amount of shares of stock, other securities, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount Original Principal Amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate the Merger Event:
(A) , the Company shall continue to have the right to determine the form number 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 otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shall will be convertible shall be deemed to be (x) if holders of a majority of Common Stock affirmatively make such an election, the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if holders of a majority of Common Stock do not affirmatively make such an election, 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, in writing, the notify 75 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. 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 If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Scorpio Tankers Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second third Business Day immediately following the Conversion Date. If the Specified Corporate 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 the Reference Property into which used to calculate the Notes Daily VWAP shall be convertible shall deemed to be based on: (A) the weighted average of the types and amounts of consideration 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 by the holders holder of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election as soon as practicable after such determination is made. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity a corporation other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, corporation shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteinformation.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Unisys Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or a change in the par value of the Common Stock);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s consolidated assets of the Company and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personentity, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03)Date, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second third Business Day immediately following the Conversion Date. If the Specified Corporate 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 the Reference Property into which used to calculate the Notes Daily VWAP shall be convertible shall be deemed to be: (A) the weighted average of the types and amounts of consideration 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 by the holders holder of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity a company other than the Company or the successor or purchasing Personentity, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Whiting Petroleum Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $€1,000 principal amount of Notes for shares (subject to a minimum aggregate principal amount of Common Stock €1,000,000 being converted) will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion of each $€1,000 principal aggregate amount of Notes (subject to a minimum aggregate principal amount of €1,000,000 being converted) 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)Date, multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right obligation of Holders to require the Company to repurchase their redeem the Notes upon a Fundamental Change in accordance with Article 1516, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 a number one share of shares of the Common Stock equal is entitled to the Conversion Rate immediately receive) upon such Merger Event and, prior to or at the effective time of such Specified Corporate Event would have been entitled Merger Event, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture permitted Section 10.01(i) providing for such change in the right to receive upon such Specified Corporate Eventconvert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company or the successor or acquiring corporation, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with Section being converted as set forth under Section 14.02; and
, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable 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 Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate Reference Property in respect of any such Merger Event causes the includes, in whole or in part, shares of Common Stock to be converted into, or exchanged forEquity, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 1414 with respect to the portion of Reference Property constituting such Common Equity. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15. The Company shall not become party to any such Merger Event unless its terms are consistent with this Section 14.07.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into cashcash and, if applicable, 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Share Exchange Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then then, at the Companyeffective time of such transaction, the Company or the successor or purchasing Personacquiring corporation, as the case may be, will shall execute with the TrusteeTrustee a supplemental indenture permitted under Section 10.02(g), without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of the Specified Corporate Share Exchange Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 Share Exchange 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 a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Specified Corporate Share Exchange Event; provided, however, that at and after the effective time of such Specified Corporate Event:
the Share Exchange 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Share Exchange Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Share Exchange Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Share Exchange Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on Holders the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, notify in writing, the writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as reasonably practicable after such determination is made. 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 If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, and such other person is party to the transaction, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other person and such supplemental indenture shall contain such additional provisions to protect the interests of Holders of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors Company, acting in good faith, shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07 and in accordance with Section 10.06, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation or Permitted Limited Liability Company, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be be: the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation or Permitted Limited Liability Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock cash 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rate described in this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (CONMED Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to in par value, or from par value to no par value, or changes resulting from no par value to par value, or as a subdivision or combinationresult of a transaction for which an adjustment is made pursuant to Section 14.04(a);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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, or other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes at the Conversion Rate shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If such Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average average, if applicable, as soon as practicable after such determination is made. 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 If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate 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 will 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 the 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 will 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 the 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 will be equal to zero.
Appears in 1 contract
Sources: Indenture (Aceto Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In Subject to Section 13.03, Section 14.01, Section 15.01, Section 15.02 and Section 15.03, in the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 eventeach, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing PersonSuccessor Company, as the case may be, will shall execute with the Trustee, Trustee a supplemental indenture permitted under Section 10.01(n) without the consent of the Holders, a supplemental indenture Holders providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares (or if a PIK Payment has been made, each $1.00 principal amount of Common Stock will Notes) shall be changed into a right to convert such principal amount of Notes for 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 into which $1,000 (or if a PIK Payment has been made, $1.00) principal amount of the Notes is convertible at the Conversion Rate immediately prior to such Specified Corporate Event (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) (or if a PIK Payment has been made, the quotient of (1) the Conversion Rate (which will be the applicable Change of Control Maximum Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event and (2) 1,000) 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 a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Specified Corporate Event; provided, however, that at and after the effective time occurrence of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.04) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such If the Reference Property in respect of any such transaction includes shares of Common Equity, such supplemental indenture described in the second immediately preceding paragraph providing that the Notes will be convertible into reference property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person that is a party to the transaction other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.08, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental indenture have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 14.01, Section 14.02 and Section 14.02 14.03, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Bloom Energy Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the outstanding Common Stock (other than a change to in par value, or from par value to no par value, or changes resulting from no par value to par value, or as a result of a split, subdivision or combinationcombination for which an adjustment is made pursuant to 14.04(a));
(ii) any consolidation, merger or other combination involving the CompanyHASI; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s consolidated assets of HASI and its Subsidiaries’ consolidated assetsSubsidiaries (including the Companies), taken as a whole; or
(iv) any statutory share exchange, in each case, as a result of which the outstanding 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the CompanyCompanies and HASI, or the successor or purchasing Personcorporation, as the case may be, will execute with the Trustee, without which supplemental indenture shall not require the consent of the Holders, a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert exchange each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert exchange such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Exchange Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
(A) the Company Companies shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion exchange of Notes in accordance with Section 14.02; and
(B) (I) any amount payable in cash upon conversion exchange 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 deliverable upon conversion exchange of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions exchanges that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion exchange of each $1,000 principal aggregate amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange 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 Specified Corporate Event and (y) the Company Companies shall satisfy the Conversion Exchange Obligation by paying such cash to the converting exchanging Holder on the second Business Day immediately following the Conversion Exchange Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible exchangeable shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the Common Stock. The Company Companies shall notify, in writing, the notify Holders, the Trustee and the Conversion Exchange Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than HASI or the Company Companies or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company Companies to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of HASI shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company Companies shall execute a supplemental indenture pursuant to Section 14.07(a), the Company Companies shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company Companies shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into exchangeable for Reference Property, the Company Companies shall notify the Trustee in writing and (i) HASI shall issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company Companies and HASI shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert exchange 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Exchange Rate described in this Section 14.07, the Companies shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any 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, 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 (without giving effect to statutory dissenters’ appraisal rights) (the “Reference Property,” with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(c) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide to the extent the Reference Property is comprised, in whole or in part, of Common Equity 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 If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, stock or other securities or other property or assets (issued by a Person that is party to such Merger Event other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 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(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each HolderHolder (in the case of Physical Notes, such notice to be mailed to each such 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Isis Pharmaceuticals Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing PersonSuccessor Company, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and Event, (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property in a manner determined by the Company and (z) the conditions to conversion under Section 14.01 shall be determined as if each reference to a share of Common Stock were instead a reference to a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Cinemark Holdings, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or a change of par value or to no par value);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 eventeach, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing PersonSuccessor Company (if applicable) and the acquiring Person (including, if the applicable Specified Corporate Event is a SPAC Transaction, the SPAC), as applicable, shall execute, at or prior to the case may beeffective time of the Specified Corporate Event, will execute with the Trustee, Representative a supplemental agreement permitted under Section 10.01(j) without the consent of the HoldersHolders (which, if the applicable Specified Corporate Event is a supplemental indenture SPAC Transaction, shall also comply with the requirements of Section 11.03) providing that, at and after the effective time of the such Specified Corporate Event, the Holders’ right to convert each $1,000 principal amount of Notes for shares of at the Conversion Rate into Common Stock will shall (i) in the case of a Specified Corporate Event (other than a SPAC Transaction) 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 (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event would have owned or been entitled to receive upon the occurrence of such Specified Corporate Event (for the avoidance of doubt, without giving effect to Section 14.03(k)) and (ii) in the case of a Specified Corporate Event that is a SPAC Transaction, into Common Stock of the SPAC equal to the Conversion Rate (such property referred to in clause (i) or (ii), the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per one share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash is entitled to the converting Holder on the second Business Day immediately following the Conversion Datereceive). If the Specified Corporate Event (other than a SPAC Transaction) 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 equityholder election), then (i) the Reference Property into which the Notes shall 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the Effective Date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee Representative and the Conversion Agent (if other than the TrusteeRepresentative) of the such weighted average as soon as practicable after such determination is made. Such If the Reference Property in respect of any such Specified Corporate Event includes Capital Stock, such supplemental indenture agreement described in the second immediately preceding paragraph providing that the Notes will be convertible into Reference Property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person that is a party to the transaction other than the Company or the successor or purchasing PersonSuccessor Company (including the SPAC in the case of a SPAC Transaction), as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental agreement shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the conversion rights set forth in this Article 14, the redemption rights set forth in Article 13, and the repurchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture agreement pursuant to subsection (a) of this Section 14.07(a)14.08, the Company shall furnish to promptly file with the Trustee Representative an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental agreement have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture agreement to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureagreement.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0714.08. None of the foregoing provisions shall affect the right of a Holder 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 14.01, Section 14.02 and Section 14.02 14.03, prior to the effective date Effective Date of such Specified Corporate Event.
(ed) The above provisions of this Section 14.08 shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Note Issuance Agreement (Northern Star Investment Corp. II)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from changes in par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s consolidated assets of the Company and its Subsidiaries’ consolidated assets, 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” ”, and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, as the case may be, will shall execute with the Trustee, without the consent of the HoldersHolders in accordance with Section 10.01(h), a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
(A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02(a) shall continue to be payable in cash;
(B) 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 in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 14.02; and14.02(a);
(BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II14.02(a) 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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and Event; and
(IIID) the Daily VWAP shall be calculated based on the value of a Unit of Reference PropertyProperty that a holder of one share of Common Stock would have received in such Specified Corporate Event; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders holder of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a company other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon in connection with a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 receive the consideration due upon conversion in accordance with Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 a number one share of shares of the Common Stock equal is entitled to the Conversion Rate immediately receive) upon such Merger Event and, prior to or at the effective time of such Specified Corporate Event would have been entitled 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 10.02(g) providing for such change in the right to receive upon such Specified Corporate Eventconvert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company shall continue to have the right to determine the form of consideration elect Physical Settlement, Cash Settlement, or Combination Settlement, with respect to be paid or delivered, as the case may be, upon conversion conversions of Notes in accordance with Section 14.02; and
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Event and Merger Event, (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property and (IV) the conditions to conversion set forth in Section 14.01(b) will be determined as if each reference to a share of Common Stock were instead a reference to a unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 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 in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the cash price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on or before the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 1414 in a manner that the Company reasonably deems appropriate to preserve the economic interests of Holders. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other person and such supplemental indenture shall contain such additional provisions to protect the interests of Holders of the Holders, including the right of Holders to require Notes as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07 and in accordance with Section 10.06, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into cash, shares of Common Stock (or other Reference Property, if applicable) or a combination of cash and shares of Common StockStock (or other Reference Property, if applicable), as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
(e) For purposes of the definition of “Fundamental Change,” upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Capital Stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or a change of par value or to no par value);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 eventeach, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof”), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”)including any Tax Efficiency Reorganization Transaction, then the Company, or the successor or purchasing PersonSuccessor Company (if applicable) and the acquiring Person (including, if the applicable Specified Corporate Event is a SPAC Transaction, the SPAC or, if the applicable Specified Corporate Event is a Tax Efficiency Reorganization Transaction, the newly formed holding company), as applicable, shall execute, at or prior to the case may beeffective time of the Specified Corporate Event, will execute with the Trustee, Trustee a supplemental indenture permitted under Section 10.01(n) without the consent of the HoldersHolders (which, if the applicable specified Corporate Event is a supplemental indenture SPAC Transaction, shall also comply with the requirements of Section 11.03) providing that, at and after the effective time of the such Specified Corporate Event, the Holders’ right to convert each $1,000 principal amount of Notes for shares of at the Conversion Rate into Common Stock will shall (i) in the case of a Specified Corporate Event (other than a SPAC Transaction or a Tax Efficiency Reorganization Transaction), 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 (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event would have owned or been entitled to receive upon the occurrence of such Specified Corporate Event (for the avoidance of doubt, without giving effect to Section 14.03(k)), (ii) in the case of a Specified Corporate Event that is a SPAC Transaction, into Common Stock of the SPAC equal to the Conversion Rate (such property referred to in clause (i) or (ii), the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per one share of Common Stock is entitled to receive) and (iii) in such the case of a Specified Corporate Event that is a Tax Efficiency Reorganization Transaction, remain unchanged, except that references to the Company’s Class A Units in the definition of “Common Stock” shall instead refer to the equivalent shares of common stock of the newly formed holding company (for which the Company’s Class A Units were exchanged) and other applicable references herein shall be modified, mutatis mutandis, to reflect the new holding company structure (y) with the Company shall satisfy remaining the Conversion Obligation by paying such cash to issuer of the converting Holder on Notes and the second Business Day immediately following Notes becoming convertible into shares of common stock of the Conversion Dateholding company). If the Specified Corporate Event other than a SPAC Transaction 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 equityholder election), then (i) the Reference Property into which the Notes shall 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the Effective Date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such If the Reference Property in respect of any such Specified Corporate Event includes Capital Stock, such supplemental indenture described in the second immediately preceding paragraph providing that the Notes will be convertible into Reference Property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person that is a party to the transaction other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of the Company 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 When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.08, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental indenture have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0714.08. None of the foregoing provisions shall affect the right of a Holder 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 14.01, Section 14.02 and Section 14.02 14.03, prior to the effective date Effective Date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or change in par value);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing PersonSuccessor Company, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have owned or been entitled to receive upon such Specified Corporate Event; provided, however, that at (the “Reference Property,” with each “unit of Reference Property” meaning the kind and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares one share of Common Stock would have received in such Specified Corporate Event and (IIIis entitled to receive) upon the Daily VWAP shall be calculated based on the value occurrence of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion of each $1,000 principal aggregate amount of Notes shall be solely cash in an amount equal without regard 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 Specified Corporate 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 Date9.985% Cap. If the Specified Corporate 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 shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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, in writing, the notify 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. Such If the Reference Property in respect of any such Specified Corporate Event includes shares of Common Equity, 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 practicable to the adjustments provided for in this Article 1413. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person, if an Affiliate of the Company or the successor or purchasing corporation, and shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require and modifications as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoingor appropriate.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)13.07, the Company shall furnish to promptly provide the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent given to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0713.07. None of the foregoing provisions shall affect the right of a Holder 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 13.01 and Section 14.02 13.01(b) prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Kempharm, Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any a consolidation, merger merger, combination, binding share exchange or other combination similar transaction involving the Company; or;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer or disposition to a third party of all or substantially all another Person of the Company’s property and its Subsidiaries’ consolidated assets, taken assets as a wholean entirety or substantially as an entirety; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would are entitled to receive cash, securities or other property for their shares of Common Stock (“Reference Property” and any such transaction, a “Share Exchange Event”), the Company or the successor or purchasing company, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Share Exchange Event, Holders of each $1,000 principal amount of Notes shall be converted into, or exchanged for entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 Share Exchange Event would have owned or been entitled to receive (any such event, a “Specified Corporate Event” the kind and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been is entitled to receive upon the occurrence of such Specified Corporate Eventreceive, a “Unit unit of Reference Property”)) upon such Share Exchange Event. If the Notes become convertible into Reference Property pursuant to this Section 14.05, then the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of if the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have has been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 replaced by Reference Property in accordance with this Section 14.02; and
(B) (I) 14.05 as a result of any amount payable in cash upon conversion Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the Notes supplemental indenture described 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Datethis paragraph. If the Specified Corporate Share Exchange 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 because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the HoldersHolders of the Notes, including the right of Holders to require provisions providing for the Company to repurchase their Notes upon a Fundamental Change rights set forth in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.05, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent given to each Holder, at its address appearing on the Note Register provided for in this Indentureaccordance with Section 19.03, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.0714.05. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from changes in par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the CompanyGuarantor; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assetsassets of the Guarantor, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, as the case may be, will execute with the Trustee, without which supplemental indenture shall not require the consent of the Holders, a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert exchange each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert exchange such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Exchange Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate 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 exchange of Notes in accordance with Section 14.02; and
(B) (I) any amount payable in cash upon conversion exchange 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 deliverable upon conversion exchange of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions exchanges that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion exchange of each $1,000 principal aggregate amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange 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 Specified Corporate Event and (y) the Company shall satisfy the Conversion Exchange Obligation by paying such cash to the converting exchanging Holder on the second Business Day immediately following the Conversion Exchange Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible exchangeable shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Exchange Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Guarantor or the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of the Guarantor shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into exchangeable for Reference Property, the Company shall notify the Trustee in writing and (i) the Guarantor shall issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company and the Guarantor shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert exchange 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (I3 Verticals, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing PersonSuccessor Company, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate Event:
(Aa) 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
(Bb) (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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and Property, (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property in a manner determined by the Company and (z) the conditions to conversion under Section 14.01 shall be determined as if each reference to a share of Common Stock were instead a reference to a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Cable One, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing PersonSuccessor Company, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate Event:
(Aa) 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
(Bb) (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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and Property, (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property in a manner determined by the Company and (z) the conditions to conversion under Section 14.01 shall be determined as if each reference to a share of Common Stock were instead a reference to a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rates described in this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Cable One, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any a consolidation, merger merger, combination, binding share exchange or other combination similar transaction involving the Company; or;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer or disposition to a third party of all or substantially all another Person of the Company’s property and its Subsidiaries’ consolidated assets, taken assets as a wholean entirety or substantially as an entirety; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would are entitled to receive cash, securities or other property for their shares of Common Stock (“Reference Property” and any such transaction, a “Share Exchange Event”), the Company or the successor or purchasing company , as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Share Exchange Event, Holders of each $1,000 principal amount of Notes shall be converted into, or exchanged for entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 Share Exchange Event would have owned or been entitled to receive (any such event, a “Specified Corporate Event” the kind and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been is entitled to receive upon the occurrence of such Specified Corporate Eventreceive, a “Unit unit of Reference Property”)) upon such Share Exchange Event. If the Notes become convertible into Reference Property pursuant to this Section 14.07, then the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of if the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have has been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 replaced by Reference Property in accordance with this Section 14.02; and
(B) (I) 14.07 as a result of any amount payable in cash upon conversion Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the Notes supplemental indenture described 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Datethis paragraph. If the Specified Corporate Share Exchange 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 because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the HoldersHolders of the Notes, including the right of Holders to require provisions providing for the Company to repurchase their Notes upon a Fundamental Change rights set forth in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent given to each Holder, at its address appearing on the Note Register provided for in this Indentureaccordance with Section 17.03, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Sources: Indenture (Novavax Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) : any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) , any consolidation, merger or other combination involving the Company; or
(iii) , any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken 's Subsidiaries substantially as a whole; or
(iv) an entirety or 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 “Specified Corporate "Merger Event” "), then, at and any 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(f) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders receive only cash in such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify 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. 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 If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In , including the event provisions providing for the purchase rights set forth in Article 15. When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish promptly file with the Trustee, in addition to the Trustee requirements of Section 10.05 hereunder, an Officer’s 's Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) . The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(e) . The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events. Upon the consummation of any Merger Event, references to "Common Stock" shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination, a change in the par value of the Common Stock or Class B Common Stock or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Company’s Restated Articles of Incorporation);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken as a whole; 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate 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 Specified Corporate Event and, prior to or at the effective time of such Specified Corporate Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee, without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of such the Specified Corporate 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, upon conversion of Notes in accordance with Section 14.02; and
Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 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 Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes shall 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) 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 Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Person, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to Section 14.07(a)subsection (a) of this Section 14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 Section 14.01 and Section Section 14.02 prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section 14.07 shall similarly apply to successive Specified Corporate Events. For the avoidance of doubt, the conversion of any or all of the Class B Common Stock into Common Stock in one or more transactions pursuant to the Company’s Restated Articles of Incorporation will not constitute a Specified Corporate Event.
Appears in 1 contract
Sources: Indenture (Marcus Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” Transaction”), then, at and any after the effective time of such Specified Transaction, 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, 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 Specified Transaction would have owned or been entitled to receive upon such Specified Transaction (the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate EventTransaction, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(k) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
Transaction (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 otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash; (B) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted in accordance with Section 14.02; (IIC) any the number of shares of Common Stock that the Company would have been required to deliver Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event Transaction and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If such Specified Transaction causes the Common Stock to be converted into, howeveror exchanged for, that 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) of such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Specified Corporate EventTransaction, then for all conversions that occur after the effective date of such Specified Corporate Event Transaction (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event Transaction and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 If, in the case of any Specified Transaction, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate EventTransaction, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate EventTransaction, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event Transaction unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate EventTransaction.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate EventsTransactions.
(e) Upon the consummation of any Specified Transaction, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Specified Transaction.
Appears in 1 contract
Sources: Indenture (Akamai Technologies Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any 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, 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 (without giving effect to statutory dissenters’ appraisal rights) (the “Reference Property,” with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(c) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide to the extent the Reference Property is comprised, in whole or in part, of Common Equity 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 If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, stock or other securities or other property or assets (issued by a Person that is party to such Merger Event other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 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(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each HolderHolder (in the case of Physical Notes, such notice to be mailed to each such 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to only in par value, or from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combinationcombination of the Common Stock);,
(ii) any consolidation, consolidation or merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, 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, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof)assets, the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been be entitled to receive upon the occurrence on account of such Specified Corporate Eventtransaction, a “Unit of Reference PropertyProperty Unit”) (and any such recapitalization, reclassification, change, consolidation, merger, sale, lease, transfer or exchange, a “Share Exchange Event”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 9.01(f) providing that, , at and after the effective time of the Specified Corporate such Share Exchange Event, the right to convert each $1,000 principal amount of Notes for a Note into cash and/or shares of Common Stock will shall be changed into a the right to convert such principal amount of Notes for the kind and amount of Note into cash and/or Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventUnits; provided, however, that at and after the effective time of such Specified Corporate Event:
the Share Exchange 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
12.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 12.02 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 12.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event Units and (III) the Daily VWAP shall be calculated based on the value of a Reference Property Unit. For these purposes, the Daily VWAP or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of Reference Property; provided, however, that if a class of securities will be the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date fair value of such Specified Corporate Event (x) the consideration due upon conversion of each $1,000 principal aggregate amount of Notes shall be solely cash Reference Property Unit or portion thereof, as applicable, determined 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 good faith by the price paid per share Company (or, in the case of Common Stock cash denominated in such Specified Corporate Event and (y) U.S. dollars, the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second Business Day immediately following the Conversion Dateface amount thereof). If the Specified Corporate Share Exchange 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 the composition of the Reference Property into which the Notes shall Unit will be convertible shall deemed to be (i) the weighted average average, per share of Common Stock, of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received received, per share of Common Stock, by the holders of Common Stock. If the holders of Common Stock receive only cash in such Share Exchange Event, then for all conversions of Notes that occur after the effective date of such Share Exchange Event, (i) the consideration due upon conversion of each $1,000 principal amount of Notes shall, for the avoidance of doubt, be solely cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date (as, for the avoidance of doubt, may be increased pursuant to Section 12.03), multiplied by the price paid per share of Common Stock in such Share Exchange Event and (ii) the Company shall satisfy its Conversion Obligations by paying cash to converting Holders on the third Business Day immediately following the applicable Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average composition of the Reference Property Unit as soon as practicable after such determination is made. 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 14XII. If If, in the case of any Share Exchange Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Share Exchange Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)12.06, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or and amount of cash, securities or other assets (including any combination thereof) that will comprise Reference Property constituting the Reference Property after any such Specified Corporate the relevant Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this the Indenture, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange Event unless its terms are consistent with this Section 14.0712.06. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock (or other Reference Property) or a combination of cash and shares of Common StockStock (or other Reference Property), as applicable, as set forth in Section 14.01 12.01 and Section 14.02 12.02 prior to the effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Sources: First Supplemental Indenture (Renewable Energy Group, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or a change of par value or to no par value);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 eventeach, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof”), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”)including any Tax Efficiency Reorganization Transaction, then the Company, or the successor or purchasing PersonSuccessor Company (if applicable) and the acquiring Person (including, if the applicable Specified Corporate Event is a SPAC Transaction, the SPAC or, if the applicable Specified Corporate Event is a Tax Efficiency Reorganization Transaction, the newly formed holding company), as applicable, shall execute, at or prior to the case may beeffective time of the Specified Corporate Event, will execute with the Trustee, Trustee a supplemental indenture permitted under Section 10.01(n) without the consent of the HoldersHolders (which, if the applicable specified Corporate Event is a supplemental indenture SPAC Transaction, shall also comply with the requirements of Section 11.03) providing that, at and after the effective time of the such Specified Corporate Event, the Holders’ right to convert each $1,000 principal amount of Notes for shares of at the Conversion Rate into Common Stock will shall (i) in the case of a Specified Corporate Event (other than a SPAC Transaction or a Tax Efficiency Reorganization Transaction), 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 (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) immediately prior to such Specified Corporate Event would have owned or been entitled to receive upon the occurrence of such Specified Corporate Event (for the avoidance of doubt, without giving effect to Section 14.03(k)), (ii) in the case of a Specified Corporate Event that is a SPAC Transaction, into Common Stock of the SPAC equal to the Conversion Rate (such property referred to in clause (i) or (ii), the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per one share of Common Stock is entitled to receive) and (iii) in such the case of a Specified Corporate Event that is a Tax Efficiency Reorganization Transaction, remain unchanged, except that references to the Company’s Common Stock in the definition of “Common Stock” shall instead refer to the equivalent shares of common stock of the newly formed holding company (for which shares of the Company’s Common Stock were exchanged) and other applicable references herein shall be modified, mutatis mutandis, to reflect the new holding company structure (y) with the Company shall satisfy remaining the Conversion Obligation by paying such cash to issuer of the converting Holder on Notes and the second Business Day immediately following Notes becoming convertible into shares of common stock of the Conversion Dateholding company). If the Specified Corporate Event other than a SPAC Transaction 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 equityholder election), then (i) the Reference Property into which the Notes shall 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the Effective Date of such Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes (or if a PIK Payment has been made, the consideration due upon conversion of each $1.00 principal amount of Notes) shall be solely cash in an amount equal to (1) if no PIK Payment has been made, the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) or (2) if a PIK Payment has been made, the quotient of (a) the Conversion Rate in effect on the Conversion Date (which will be the applicable Change of Control Conversion Rate if such Specified Corporate Event is also a Change of Control) and (b) 1,000, in each case, multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as practicable after such determination is made. Such If the Reference Property in respect of any such Specified Corporate Event includes Capital Stock, such supplemental indenture described in the second immediately preceding paragraph providing that the Notes will be convertible into Reference Property shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person that is a party to the transaction other than the Company or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the redemption rights set forth in Article 13, and the repurchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.08, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such supplemental indenture have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0714.08. None of the foregoing provisions shall affect the right of a Holder 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 14.01, Section 14.02 and Section 14.02 14.03, prior to the effective date Effective Date of such Specified Corporate Event.
(ed) The above provisions of this Section 14.08 shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock cash 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 effective date of such Specified Corporate Event.
(e) [Reserved]
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Itron, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or a change in the par value of the Common Stock);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s consolidated assets of the Company and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personentity, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the second third Business Day immediately following the Conversion Date. If the Specified Corporate 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 the Reference Property into which used to calculate the Notes Daily VWAP shall be convertible shall be deemed to be: (A) the weighted average of the types and amounts of consideration 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 by the holders holder of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity a company other than the Company or the successor or purchasing Personentity, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Whiting Petroleum Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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, securities or other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Merger Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate 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 would have been entitled to receive receive) upon such Specified Corporate Merger Event, and the Company or the successor or purchasing company, as the case may be, shall execute with the Trustee, pursuant to and in accordance with Section 8.02(g) of this Supplemental Indenture, a supplemental indenture providing that, at and after the effective time of such Merger Event, a Holder’s right to convert a Note into cash and/or shares of Common Stock shall be changed into a right to convert such Note into cash and/or units of Reference Property; provided, however, that at and after the effective time of such Specified Corporate Event:
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
9.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 9.02 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 9.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, Property that if a holder of one share of the holders of Common Stock receive only cash would have received in such Specified Corporate Merger Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) 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 pursuant to Section 9.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as reasonably practicable after such determination is made. 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 149. If the Reference Property in respect of any such Specified Corporate Merger Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity a company other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15pursuant to Section 10.01, as the Board of Directors shall reasonably consider considers necessary by reason of the foregoing.
(b) In the event Promptly following execution by the Company shall execute of a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)9.07, the Company shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 twenty days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are consistent with this Section 14.079.07. None of the foregoing provisions shall affect the right of a Holder 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 9.01 and Section 14.02 9.02 prior to the effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section 9.07 shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: First Supplemental Indenture (Veeco Instruments Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; orParent Guarantor,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Companyconsolidated assets of Parent Guarantor and Parent Guarantor’s existing and its future Subsidiaries’ consolidated assets, 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Personacquiring corporation, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under 10.01(c) providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock Ciena Consideration Units equal to the Conversion Rate immediately prior to such Specified Corporate 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 Ciena Consideration Unit is entitled to receive) upon the occurrence of such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
, (A) the Company or the successor or acquiring corporation, as the case may be, 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
, and in respect of the Interest Make-Whole Payment, if applicable, in accordance with Section 14.01(b) and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 14.01 and Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.01 and Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) 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 14.04), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify 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. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If the Section 14.09, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in respect good faith are appropriate. If, in the case of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Person, as the case may be, in such Specified Corporate Event, then such the Reference Property includes shares of Common Equity or other entity, if it securities issued by a company that is a party to such Specified Corporate Eventtransaction but is not the Company, shall such other company will also execute such supplemental indenture, and such supplemental indenture shall will contain such additional provisions and modifications as the Board of Directors reasonably considers necessary or appropriate to protect the interests of the Holders, including the right of Holders to require the Company to repurchase purchase their Notes notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing. If the Notes become convertible into Reference Property, the Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.09, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company Parent Guarantor shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0714.09. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into Ciena Consideration Units or, following receipt of Stockholder Approval, cash, shares of Common Stock Ciena Consideration Units or a combination of cash and shares of Common StockCiena Consideration Units, as applicable, all as set forth in Section 14.01 and Section 14.02 14.02, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (TripAdvisor, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation or Permitted Limited Liability Company, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be deemed to be based on: (A) the weighted average of the types and amounts of consideration 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 by the holders holder of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election as soon as practicable after such determination is made. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation or Permitted Limited Liability Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rate described in this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Conmed Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to changes in par value, value or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 “Specified Corporate Merger Event” ”), then, at the effective time of the Merger Event, the Company or the successor or acquiring person, as the case may be, shall execute with the Trustee a supplemental indenture, without the consent of the Holders, providing that at and any 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(j) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, 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, (IIC) 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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as reasonably practicable after such determination is made. Such If the Reference Property in respect of any Merger Event includes, in whole or in part, shares of Common Equity or securities convertible into or exchangeable for shares of Common Equity, the 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 1414 with respect to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common Equity. If the Reference Property in respect of any such Specified Corporate Merger Event includes shares of stock, other securities or other property or assets (assets, other than cash) (including any combination thereof) cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event and such other company, if an affiliate of the Company (or, if the Company does not survive the Merger Event, then an affiliate of the successor or purchasing company) is party to the transaction, such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change shall in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are reasonably consistent with this Section 14.0714.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Vertex Energy Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash up to the aggregate principal amount of such Notes and cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (MACOM Technology Solutions Holdings, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Personacquiring corporation, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(j) providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have owned or been entitled to receive (without giving effect to any dissenters’ rights) (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 the occurrence of such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
, (A) the Company or the successor or acquiring corporation, as the case may be, 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
, if the Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (IIy) 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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Specified Corporate Event causes the Common Stock to be converted into, howeveror exchanged for, that if the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash amount to the converting Holder Holders on the second third Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify 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. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, 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 When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into shares of Common Stock or, following receipt of Stockholder Approval, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 14.01 and Section 14.02 14.02, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Enernoc Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shall 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. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) 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, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify 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. Such If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, 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 14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any such Specified Corporate Event Merger Event, the Reference Property includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) ), other than cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing Personentity, as the case may be, in such Specified Corporate Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change shall in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section 14.07 shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s existing and its future Subsidiaries’ consolidated assets, 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Personacquiring corporation, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(b) providing that, at and after the effective time of the such Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property 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 the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate 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 the occurrence of such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
, (A) the Company or the successor or acquiring corporation, as the case may be, 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
, and in respect of the Interest Make-Whole Payment, if applicable, in accordance with Section 14.01(b) and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 14.01 and Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.01 and Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes shall will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Event (A) 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 14.04), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing, the notify 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. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article 14. If the Section 14.09, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in respect good faith are appropriate. If, in the case of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Person, as the case may be, in such Specified Corporate Event, then such the Reference Property includes shares of Common Equity or other entity, if it securities issued by a company that is a party to such Specified Corporate Eventtransaction but is not the Company, shall such other company will also execute such supplemental indenture, and such supplemental indenture shall will contain such additional provisions and modifications as the Board of Directors reasonably considers necessary or appropriate to protect the interests of the Holders, including the right of Holders to require the Company to repurchase purchase their Notes notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing. If the Notes become convertible into Reference Property, the Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) and publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.09, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.0714.09. None of the foregoing provisions shall affect the right of a Holder holder of Notes to convert its Notes into shares of Common Stock or, following receipt of Stockholder Approval, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 14.01 and Section 14.02 14.02, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Cyan Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from changes in par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the CompanyPubco; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assetsassets of Pubco, 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the CompanyPartnership, or the successor or purchasing Personcorporation, as the case may be, will execute with the Trustee, without which supplemental indenture shall not require the consent of the Holders, a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert exchange each $1,000 250,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert exchange such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Exchange Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
(A) the Company Partnership shall continue to have the right to determine the form of consideration to be paid paid, issued or delivered, as the case may be, upon conversion exchange of Notes in accordance with Section 14.02; and
(B) (I1) any amount payable in cash upon conversion exchange of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II2) any shares of Common Stock that the Company would have been required to deliver issuable or deliverable upon conversion exchange of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III3) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions exchanges that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion exchange of each $1,000 250,000 principal aggregate amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange 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 Specified Corporate Event and (y) the Company Partnership shall satisfy the Conversion Exchange Obligation by paying such cash to the converting exchanging Holder on the second Business Day immediately following the Conversion Exchange Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible exchangeable shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the Common Stock. The Company Partnership shall notify, in writing, the notify Holders, the Trustee and the Conversion Exchange Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than Pubco or the Company Partnership or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company Partnership to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors Partnership shall reasonably consider necessary by reason of the foregoing. Notwithstanding anything to the contrary herein, this Section 14.07 shall not apply in the case of the Restructuring.
(b) In the event the Company Partnership shall execute a supplemental indenture pursuant to Section 14.07(a), the Company Partnership shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company Partnership shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into exchangeable for Reference Property, the Company Partnership shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websitewriting.
(d) The Company Partnership and Pubco shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert exchange 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Galaxy Digital Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger or other combination involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Event” Transaction”), then, at and any after the effective time of such Specified Transaction, 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, 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 Specified Transaction would have owned or been entitled to receive upon such Specified Transaction (the “Reference Property”, with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate EventTransaction, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(k) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
Transaction (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 otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash; (B) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted in accordance with Section 14.02; (IIC) any the number of shares of Common Stock that the Company would have been required to deliver Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event Transaction and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty . If such Specified Transaction causes the Common Stock to be converted into, howeveror exchanged for, that 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) of such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Specified Corporate EventTransaction, then for all conversions that occur after the effective date of such Specified Corporate Event Transaction (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event Transaction and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 If, in the case of any Specified Transaction, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate EventTransaction, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate EventTransaction, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly send mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event Transaction unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate EventTransaction.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate EventsTransactions.
(e) Upon the consummation of any Specified Transaction, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Specified Transaction.
(f) In connection with any adjustment to the Conversion Rate with respect to a Specified Transaction, the Initial Dividend Threshold shall be adjusted 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 composed solely of non-stock consideration, the initial dividend threshold will be zero.
Appears in 1 contract
Sources: Indenture (MKS Instruments Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rate described in this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders holder of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Person, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from changes in par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s consolidated assets of the Company and its Subsidiaries’ consolidated assets, 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 “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” ”, and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, as the case may be, will shall execute with the Trustee, without the consent of the HoldersHolders in accordance with Section 10.01(h), a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
(A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02(a) shall continue to be payable in cash
(B) 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 in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 14.02; and14.02(a);
(BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II14.02(a) 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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and Event; and
(IIID) the Daily VWAP shall be calculated based on the value of a Unit of Reference PropertyProperty that a holder of one share of Common Stock would have received in such Specified Corporate Event; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders holder of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the 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 anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including cash or any combination thereof) of an entity a company other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon in connection with a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 receive the consideration due upon conversion in accordance with Section 14.01 and Section 14.02 prior to the effective date of such Specified Corporate Event.
(e) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Amended and Restated Certificate of Incorporation);
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or;
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a wholean entirety; 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 “Specified Corporate Share Exchange Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the Specified Corporate such Share Exchange Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for 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 Share Exchange 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 a number one share of shares of the Common Stock equal is entitled to the Conversion Rate immediately receive) upon such Share Exchange Event and, prior to or at the effective time of such Specified Corporate Event would have been entitled Share Exchange Event, the Company or the successor or acquiring Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to receive upon such Specified Corporate Eventconvert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Share Exchange Event (A) the Company or the successor or acquiring Person, as the case may be, 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; providedProperty that a holder of one share of Common Stock would have received in such Share Exchange Event. If the Share Exchange Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Share Exchange Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Share Exchange Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second fifth Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify 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. Such If the Reference Property in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, 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 14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any such Specified Corporate Event Share Exchange Event, the Reference Property includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) ), other than cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing acquiring Person, as the case may be, in such Specified Corporate Share Exchange Event, then such supplemental indenture shall also be executed by such other entityPerson, if it such Person is a party to such Specified Corporate Event, shall also execute such supplemental indenturean Affiliate of the Company or the successor or acquiring Person, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change shall in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Share Exchange 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 effective date of such Specified Corporate Share Exchange Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Share Exchange Events.
Appears in 1 contract
Sources: Indenture (Datadog, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to changes in par value, value or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assetsSubsidiaries substantially as an entirety, 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 “Specified Corporate Merger Event” ”), then, at the effective time of the Merger Event, the Company or the successor or acquiring person, as the case may be, will execute with the Trustee a supplemental indenture, without the consent of the Holders, providing that at and any after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes will be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(j) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company shall or the successor or acquiring company, as the case may be, will continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, 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 will continue to be payable in cash, (IIC) 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 will instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (IIID) the Daily VWAP shall will be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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 will 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 will refer to the consideration referred to in clause (i) attributable to one share of Common Stock. The Company will notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) the consideration due upon conversion of each $1,000 principal aggregate amount of Notes shall will 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 Specified Corporate Merger Event and (yB) the Company shall will satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall will provide for anti-dilution and other adjustments that shall be are as nearly equivalent as is possible to the adjustments provided for in this Article 14. If the Reference Property in respect of any such Specified Corporate Merger Event includes shares of stock, other securities or other property or assets (assets, other than cash) (including any combination thereof) cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event and such other company, if an affiliate of the Company (or, if the Company does not survive the Merger Event, then an affiliate of the successor or purchasing company) is party to the transaction, such other entity, if it is a party to such Specified Corporate Event, shall company will also execute such supplemental indenture, and such supplemental indenture shall will contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change will in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are reasonably consistent with this Section 14.0714.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change from no par value to par value, a change in par value or a change from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, Permitted Limited Liability Company or Permitted Partnership, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for into the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such Specified Corporate 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 Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the weighted average of the types and amounts of consideration received by the holders of Common Stock as soon as practicable after such determination is madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, Permitted Limited Liability Company or Permitted Partnership, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or information, disclose the relevant information in a Current Report on Form 8-K and (ii) or post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) [Reserved].
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Sources: Indenture (EQT Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; orHoldings;
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company’s Holdings and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a wholean entirety; 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 eventeach, a “Specified Corporate Event” ”), then the Issuer and any Holdings or the Issuer and the Successor Company, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01 (l) providing that, at and after the effective time of such Specified Corporate Event, the right to exchange each $1,000 Initial Principal Amount of Notes shall be changed into a right to exchange such principal amount of Notes into the kind and amount of shares of stock, other securities, 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 Exchange Amount immediately prior to such Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Person, 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 the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate Event:
, (A) then the Company Issuer (acting on the direction of Holdings) or the Successor Company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion exchange of Notes in accordance with Section 14.02; and
Section 14.02 and (B) (Ix) any amount payable in cash upon conversion exchange of the Notes in accordance with Section Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company Holdings would have been required to deliver upon conversion exchange of the Notes in accordance with Section Section 14.02 shall instead be deliverable in the Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 shareholder election), then (i) the Reference Property into which the Notes will be exchangeable shall be convertible shall deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, 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. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all exchanges for which the relevant Exchange Date occurs after the effective date of such Specified Corporate Event (A) the consideration due upon exchange of each $1,000 Initial Principal Amount of Notes shall be solely cash in an amount equal to (a) the quotient of the Capitalized Principal Amount of such Note divided by the Exchange Price in effect on the Exchange Date (as may be decreased pursuant to Section 14.03), multiplied by (b) the price paid per share of Common Stock in such Specified Corporate Event and (B) the Issuer shall satisfy the Exchange Obligation by paying such cash amount to exchanging Holders on the third Business Day immediately following the relevant Exchange Date. The Company Issuer shall notify, in writing, the notify Holders, the Trustee and the Conversion Exchange Agent (if other than the Trustee) in writing of the 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 (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article Article 14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors and the board of directors of Holdings determine in good faith are appropriate. If If, in the case of any Specified Corporate Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person other than the Company Issuer or the successor or purchasing PersonSuccessor Company, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including Holders of the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors and the board of directors of Holdings shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the repurchase rights set forth in Article 15.
(b) In When the event the Company shall execute Issuer executes a supplemental indenture pursuant to Section 14.07(a)subsection (a) of this Section 14.07, the Company Issuer shall furnish to promptly file with the Trustee an Officer’s Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver notice thereof to all Holders. The Company Issuer shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If Neither the Notes become convertible into Reference Property, the Company Issuer nor Holdings shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section Section 14.07. None of the foregoing provisions shall affect the right of a Holder to convert exchange its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section Section 14.01 and Section 14.02 Section 14.02, prior to the effective date of such Specified Corporate Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately is entitled to receive) upon such Merger Event and, prior to such Specified Corporate Event would have been entitled to receive upon or at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted under Section 10.01(g) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify 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. Such If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, 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 14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any such Specified Corporate Event Merger Event, the Reference Property includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) ), other than cash and/or cash equivalents, of an entity a Person other than the Company or the successor or purchasing Personentity, as the case may be, in such Specified Corporate Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change shall in accordance with Article 15, as the Board of Directors shall good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger merger, combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” ”), then, at and any after the effective time of such Merger Event, the right to convert the 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, 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 the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Merger Event and, at the occurrence effective time of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Person, as the case may be, will shall execute with the Trustee, without the consent of the Holders, Trustee a supplemental indenture permitted by Section 10.01(h) providing that, at and after the effective time of the Specified Corporate Event, for such change in the right to convert each $1,000 the principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate EventNotes; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or acquiring Person, as the case may be, 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
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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (III) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if the right to receive more than a single type of consideration, then 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) the consideration due upon conversion of each $1,000 the 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as reasonably practicable after such determination is made. Such If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity, the 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 1414 with respect to the portion of Reference Property constituting such Common Equity. If If, in the case of any Merger Event, the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereofcash and/or cash equivalents) of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, supplemental indenture shall also execute be executed by such supplemental indenture, other Person and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require as the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15. The Company shall not become party to any such Merger Event unless its terms are consistent with this Section 14.07.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Sources: Indenture (fuboTV Inc. /FL)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination);,
(ii) any consolidation, merger combination or other combination similar transaction involving the Company; or,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all the consolidated assets of the Company and the Company’s and its Subsidiaries’ consolidated assets, taken Subsidiaries substantially as a whole; an entirety 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 “Specified Corporate Merger Event” and any such stock”) then, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and at the amount of Reference Property that a holder of one share effective time of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Merger Event, a “Unit of Reference Property”), then the Company, Company or the successor or purchasing Personacquiring person, as the case may be, will shall execute with the TrusteeTrustee a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of the Specified Corporate such Merger Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will shall be changed into a right to convert such principal amount of Notes for into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination 77 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 a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been is entitled to receive receive) upon such Specified Corporate Merger Event; provided, however, that at and after the effective time of such Specified Corporate Event:
the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, 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, (IIC) 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 Units amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a Unit unit of Reference Property; provided. If the Merger Event causes the Common Stock to be converted into, howeveror exchanged for, that if 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. If the holders of the Common Stock receive only cash in such Specified Corporate Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Specified Corporate Merger Event (xA) 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Merger Event and (yB) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder Holders on the second Business Day immediately following the relevant Conversion Date. If the Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify, in writing, the notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the such weighted average as soon as reasonably practicable after such determination is made. Such The 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 1414 with respect to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common Equity. If the Reference Property in respect of any such Specified Corporate Merger Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) assets, of an entity a Person other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Merger Event, then such other entity, if it is a party to such Specified Corporate Event, company shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Company’s Board of Directors shall reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 14.07(a)14.07, the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) property or asset that will comprise the a unit of Reference Property after any such Specified Corporate Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be sent delivered to each Holder, at its address appearing on the Note Register provided for in this Indenture, Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) issue a press release containing the relevant information or disclose the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s website.
(d) The Company shall not become a party to any Specified Corporate Merger Event unless its terms are reasonably consistent with this Section 14.0714.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Merger Event.
(ed) The above provisions of this Section shall similarly apply to successive Specified Corporate Merger Events.
Appears in 1 contract
Sources: Indenture (Jetblue Airways Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from changes in par value to no par value, or changes resulting from a subdivision or combination);
(ii) any consolidation, merger or other combination involving the Company; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, 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 stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property” and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing Personcorporation, as the case may be, will execute with the TrusteeTrustee a supplemental indenture, without which supplemental indenture shall not require the consent of the Holders, a supplemental indenture providing that, at and after the effective time of the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes for shares of Common Stock will be changed into a right to convert such principal amount of Notes for the kind and amount of Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Specified Corporate Event would have been entitled to receive upon such Specified Corporate Event; provided, however, that at and after the effective time of such the Specified Corporate 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 issuable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the Units of Reference Property that a holder of that number of shares of Common Stock would have received in such Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion conversions 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 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate 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 Specified Corporate 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 the Reference Property into which the Notes shall be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of the Common Stock. The Company shall notify, in writing, the 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 madedetermination. 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 the Reference Property in respect of any such Specified Corporate Event includes shares of stock, other securities or other property or assets (other than cash) (including any combination thereof) of an entity other than the Company or the successor or purchasing Personcorporation, as the case may be, in such Specified Corporate Event, then such other entity, if it is a party to such Specified Corporate Event, shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall furnish to promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or other assets (including any combination thereof) that will comprise the Reference Property after any such Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be 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) If the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and (i) the Company shall issue a press release containing the relevant information or disclose and publish the relevant information in a Current Report on Form 8-K and (ii) post such information on the Company’s websiteits website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a Holder 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 effective date of such Specified Corporate Event.
(e) In connection with any adjustment to the Conversion Rate described in this Section 14.07, the Company shall also adjust the Initial Dividend Threshold 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 composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.
(f) The above provisions of this Section shall similarly apply to successive Specified Corporate Events.
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Sources: Indenture (Uniti Group Inc.)